IVF paperwork error: Criticism of lawyers’ response

In the matter of the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam) is another judgment concerning a failure to comply with legislative requirements which gave rise to legal parentage implications. The issues were not much different to those in earlier matters, but there were some bluntly critical remarks from the trial judge.

At [34], the apologetic tone of the clinic (one the error was identified) was contrasted to that of the clinics lawyers, with what seems to be an implied criticism of the lack of an offer of some funding so that the parents could seek legal advice:

The parents in the present case acknowledge the sympathy and understanding with which they were treated by the clinic’s senior infertility counsellor after the clinic’s error was revealed, an approach which was reflected in both the tone and the phraseology of her witness statement in June 2015. The attitude of the clinic’s solicitors is another matter. Their opening letter, dated 6 February 2015, was cold and impersonal. The writer ended with the comment that “I would encourage you to obtain your own legal advice if you are able to do so (emphasis added).” There was, as Miss Fottrell pointedly observes, no offer of funding, though that is a matter which Y had, in my judgment entirely reasonably and appropriately, raised with the clinic in a letter dated 7 January 2015, suggesting that the burden of costs should fall on the clinic given its “gross negligence.”

In relation to an initial offer of compensation in the sum of 1,000 pounds, at [36] – [37]:

…The letter was crass and insensitive, though even to describe it in this way is understatement on the grand scale. X described the offer as “a pathetic financial gesture” which made her feel “extremely insulted.” Y said that “It was just insulting to think that the clinic regarded the position they had put our whole family in, could be corrected by a mere financial offering … there was no offer in any shape or form to help correct the situation … there was a complete disregard for the impact their error had on our [children’s] lives.” I am not surprised. To use the phrase “this episode” to describe what this family had gone through, and were still going through, was grossly insensitive. The phrases “very distressing” and “much anxiety” were little better than formulaic and stand in stark contrast with the language used by X and Y to describe how they felt.

The offer of money, whatever the amount, was merely adding insult to injury. And it is to be noted that the offer was not unconditional. It was put forward as being “in full and final settlement” – I can only trust that it was not in fact set as a trap, in the hope that, if accepted, it would set a derisory cap to the clinic’s potential exposure to costs. And, if an offer of financial compensation was appropriate at all, the idea that £1,000 began to approach a realistic figure was so wide of the mark as to be not merely insulting but almost offensively so.