A child born without fathers consent

The following case has involved the consideration of a father’s financial responsibility towards a child who was born as a result of IVF without his consent.

The father failed last week in his attempt to recover £1 million worth of damages, from a Harley Street IVF clinic, namely IVF Hammersmith despite the court ruling that his former partner forged his signature to conceive their daughter. The judge in this case told the father that he had succeeded on all issues “save the issue of legal policy”.

So what is the legal policy issue?

In 2010 the father and his former partner’s relationship came to an end. It was on Valentine’s Day in 2011 that he received a text message from her writing: “by the way, I’m pregnant”.

The re-married father to the child is now left with the financial burden a child brings which in this case includes the cost of private education, nannies, and a Land Rover Discovery to enable his former partner to drive the children around, not to mention the costs of funding a suitable home and the upkeep of this.

The father of the child and his former girlfriend attended the clinic in 2008 and signed an agreement for cryopreservation (the process of preserving cells) to begin. They conceived a son in 2008 by IVF. Since this both parties have had to sign an agreement annually (as required by UK law) for the embryo’s frozen to remain in storage. The parties continued to consent on an annual basis for a number of embryo’s to remain frozen. In 2010 the mother of the child requested and was given a ‘Consent to Thaw’ form; a form that requires the consent of both parties, if consent is given, an embryo will be thawed and implanted. The mother returned this form to the clinic purportedly signed by the father.

The father’s case is that the form had not been signed by him and his signature had been forged by his former partner with whom his relationship had irretrievably broken down with some time ago. The father claimed that the clinic must now bear the financial consequences the child brings, a claim he was not successful in although the court was satisfied the child existed as a result of the mother’s wrong doing.

The Law

It once could be said that parents would be successful in bringing wrongful conception and birth suits against health authorities for reasons such as clinical mishaps in family planning techniques including negligently performed abortion and sterilisation, claiming that in the absence of such negligent treatment the “unwanted child” would not have been born. Parents have typically sought damages for pain and suffering, and for the costs of child maintenance. This was until the House of Lords ruled in the case of McFarlane v Tayside Health Board in 1999 that parents of an unplanned but healthy child were no longer entitled to recover damages reflecting the costs of its maintenance. The view was taken that the law views parenthood as a benefit and that it is morally unacceptable to regard children as a “financial liability”.

Many have criticised this approach, arguing that although a healthy child is a blessing to the public at large, it is certain that in some cases it can actually be a burden for the parent’s involved and should a father, or mother be responsible for the financial burden when the child has been born though the negligence of a third party?

Although the above case was ruled against the father, the judge did give his permission for his judgement to be appealed, how the law may develop in this area is yet to be seen.

If you need any legal advice on your rights in relation to child maintenance or any issue surrounding the financial aspects of family law please contact family law specialists Maguire Family Law by email Jessica.wilson@family-law.co.uk or telephone:

Wilmslow 01625 544650

Knutsford 01565 648228

London     0207 947219