A piece in today’s Times by Jonathan Ames, Legal Correspondent. Not content with the two existing forms of paternity fraud (leading a man to believe he’s the biological father of a child when he’s not, and frustrating contraceptive methods e.g. by not taking the Pill, unknown to her partner), a woman has added a third form, and I doubt she’s the first woman to have done so:
A man who lost a legal battle to be compensated for raising a child who was born using IVF without his consent says that he is racked with guilt over the existence of his “beautiful and charming” daughter.
Despite an IVF clinic accepting that his signature was forged on a consent form that authorised the treatment after the man had split from his partner, judges at the Court of Appeal told the father that he was not entitled to a million pounds in compensation.
The father — a middle-aged London businessman — told The Times that it “has proven impossible for me to reconcile my emotions around my daughter”. He described the eight-year-old as “beautiful and charming — a girl whose existence is no fault of her own, yet the personal trauma does not dissipate”. He added: “That fills me with guilt and is very difficult emotionally to deal with.”
The daughter was born after the couple split in 2010. Two years earlier they had conceived a son through treatment at the IVF Hammersmith Clinic in London. After the birth of their son, the couple paid a fee to the clinic for the retention of several embryos.
Two years later the couple split acrimoniously. The mother then asked the clinic for further treatment with the stored embryos and presented a consent form with her ex-partner’s signature, which she had forged. In a ruling that has reignited debate over the regulation of IVF treatment in the UK, the judges agreed last week that rules governing the processes were lax but that the law sees having a child as “an incalculable benefit”.
In an exclusive interview with The Times the father, who cannot be named for legal reasons, criticised the court’s rationale as a “nebulous philosophical notion”. He said that he struggled every day with conflicting feelings around the eight-year saga. The father is uncompromisingly critical of the approach of the clinic, which accepted the forged signature without confirming its validity directly with him.
He pointed out that the cryopreservation agreement was a commercial contract that had clear terms. There was “a strict requirement that they [the embryos] were not to be used without the express and considered permission of both the patients involved,” he said.
After spending £750,000 on legal fees, the father is now considering an appeal to the Supreme Court. “Despite winning on breach of contract and negligence, the Court of Appeal’s view is I have had an incalculable gain through the birth of my daughter,” he said. The court claims that this outweighs his contractual loss. “How does one evaluate my emotional loss?”
Despite a fraught relationship with his former partner, who has in the past falsely accused him of abusing their daughter, he said that her behaviour was understandable. “She was desperate to have another child, was pumped up with drugs, and the clinic had already taken her money.”
He reserved his wrath for the clinic and the regulator, the Human Fertilisation and Embryology Authority. “The regulators do not know their own responsibilities and obligations under the law . . . there is a complete failure on the part of the authority to lead.”
He acknowledged that guidance documents are “basically good”. However, he argued that there are serious problems around how that guidance is implemented and monitored. “The authority has allowed clinics to devise their own protocols and procedures.”
The father, who is with his wife and second son on holiday abroad, was critical of medical specialists: “Once on the IVF treadmill, often seduced in by the one-off treatment funded by the NHS, couples find themselves easy prey to salespeople in white lab coats, often spending tens of thousands of pounds on fruitless services.”
Behind the story
The Human Fertilisation and Embryology Act 1990 created the authority that monitors fertility clinics’ licences. Lawyers agree with the father in this case that there is a problem with ID fraud in IVF services. Rachel Stewart, of Hughes Paddison, which acted for the father, said that simple checks could have stopped the fraud.
She pointed out that the court had called it morally wrong to consider a child as a financial liability but it was outdated for it to call a child an “immeasurable benefit” when a parent did not choose to have it, adding that if it had been born disabled, damages would have been recoverable. This raised the question of “whether the court is saying a disabled child is of less benefit”.
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