The recent incident at Monash IVF in Brisbane (see here), where a woman gave birth to another couple’s child due to an embryo mix-up, has sparked significant legal and ethical debates. While this case unfolds in Australia, it raises pertinent questions about how similar situations might be addressed under UK law.
Legal parenthood in the UK
In the UK, the Human Fertilisation and Embryology Act 2008 (2008 Act) governs assisted reproductive technologies. Under this Act, the woman who carries and gives birth to a child is recognised as the legal mother, regardless of genetic ties. If she is married or in a civil partnership, her spouse or partner is typically deemed the second legal parent, unless it is shown he did not consent to the treatment. In the absence of a marriage or civil partnership, the 2008 Act provides a mechanism for the partner of the mother to be given status as the father.
In cases where an embryo mix-up occurs, the birth mother and her married partner (if applicable) would initially be considered the legal parents. What would, however, happen in a scenario where:
1. the partner of the mother (Partner) was not married/in a civil partnership to her at the time of the impregnation/birth;
2. the agreed fatherhood provisions did not apply to the Partner;
3. the Partner, however, remained in the lives of the mother and the child and essentially assumed the role of father; and
4. the Partner died either intestate or leaving his estate to his biological children?
Implications for inheritance rights
As a result of the provisions of the 2008 Act, the Partner would not be deemed to legally be the father of the child. This would mean that the effect of his Will or the intestacy would be to exclude the child from inheriting from the Partner. That does not, however, mean that the child would be without redress. The Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) allows certain individuals to claim reasonable financial provision from a deceased person’s estate. Eligibility includes spouses, former spouses, children, and individuals maintained by the deceased.
In the context of an IVF mix-up, determining who qualifies as a “child of the deceased” could become contentious, especially where it is uncertain whether there had been a mix-up during the IVF at all. It would, however, not be necessary for the child to rely on the provisions relating to a claim by children of the deceased, as section 1(1)(d) of the 1975 Act provides that:
“any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family…”.
The child in the above scenario would therefore have standing to seek reasonable financial provision from the estate of the Partner. What that reasonable provision looks like would depend on all the circumstances of the case, including the resources of the applicant.
Comment
Whilst the above scenario would provide some recourse to the child mentioned, the child would obviously be in a much better position if either:
1. the Partner had accepted responsibility under the fatherhood provisions of the 2008 Act; or
2. the Partner had named the affected child personally when setting out what his ‘children’ would inherit.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in civil disputes, insolvency, inheritance disputes, data breach claims and defamation claims.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us