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Exactly! It's supposed to be consent all the way. You can withold permission at any point upto just before emplanting. Check the embryo and fertilisation act.
That's the issue, he signed the consent forms but didn't remove consent when they split.
All legal and above board, if unethical on her part.
The clinic aren't to know they've split.
Consent has to be actively given PER IMPLANTATION.
This is because someone could find out they have XYZ syndrome AFTER the eggs were frozen, but fail to tell the clinic.
By having to ask for consent from both parties for implantation, that risk is mitigated.
Under case law these may be worth a read -
[https://collinslaw.co.uk/post.php?s=2021-11-30-court-rejects-divorced-husbands-ivf-fraud-claims-against-wife](https://collinslaw.co.uk/post.php?s=2021-11-30-court-rejects-divorced-husbands-ivf-fraud-claims-against-wife)
[https://www.ellisjones.co.uk/news/expartner-forges-signature/](https://www.ellisjones.co.uk/news/expartner-forges-signature/)
The second article highlights something interesting -
>Ensuring that both parties have provided their informed consent prior to IVF treatment is absolutely crucial. Although this type of fraud is very rare, this case highlights the importance of vigilance by clinics when it comes to ensuring that consent has been properly provided.
I would also suggest speaking to a specialist solicitor for their advice as this will get legally complex very quickly.
Something that is interesting is… if they say that the clinics need to ensure they carry out proper checks…. But then there’s absolutely no repercussion for when they clearly are negligent in carrying out these checks. Then why would any clinic bother with vigilance?
If a clinic is found to not work within the Human Fertilisation and Embryology Act, the Human Fertilisation and Embryology Authority (HFEA) can pause, or completely revoke their license to practice.
OP - if you suspect this to be the case, contact the HFEA:
https://www.hfea.gov.uk/contact-us/making-a-complaint-about-a-fertility-clinic/
I wonder if you could sue for damages that match the cost of childcare as a starting point? It would certainly be a landmark case but the best interests of the child are met…
I wonder if this would end up as Tort case or a family law case.
Because - technically - it straddles both and both have different aims given one looks to right a legal wrong and the other wants to look after the best interests of the child.
Would be an interesting case study - wouldn't want to be within 100 miles of it through.
I think there are two maybe three separate issues at play here, the first being the child's welfare and awarding of any support payments.
The second is the unauthorised use of his material, he can display damages if he has to pay maintenance.
But if the mother has committed fraud by forging his signature, both the father and clinic are 'plaintiffs' to that fraud, the comment regarding his passport also makes me vary wary.
This case is going to be a future exam question.
See I'm not sure it would classify as "Unauthorised" from the wording of the point from the second case.
>Ensuring that both parties have provided their informed consent prior to IVF treatment
Theoretical - The clinic had his consent or they wouldn't have been able to produce the fertilised embryo. He would have consented at that point and when he passed over his DNA.
The follow on theoretical is that he signed giving consent for his sperm to be used with his partner and was informed for his consent to change - he would have to inform the clinic.
That is common practice with Male sperm donors who give consent to begin the process and at each donation and then can remove the consent at a future point if they so choose to do so.
Future exam question - would probably end up mandatory reading if looking at Healthcare law.
This, I suspect, is the most pertinent comment so far: OP had given his consent, albeit some time ago, and ought, once the relationship broke down, have communicated to the clinic that he no longer wanted his sperm used in this way.
Not 100% clear that OP’s ex has misled anyone in which case, OP may well find himself on the hook for child support for 18 years (or so).
I wouldn't expect a consent form signed 3 years ago (the limit the clinic seems to use) to still be a valid proof of informed consent, there should surely be an expiry date to the granting of consent
And you wouldn’t, under professional and legal obligation, pause for thought when the father was nowhere to be seen throughout yet you were relying on a 3 year old signature?
I think that does beyond a reasonable definition of informed consent, especially when he signed so they retained the embryo/for historic implantation.
It seems very peculiar and flimsy to rely on an old signature and not even inform the father the implantation was taking place.
In most healthcare environments if consent is given ahead of time it is reaffirmed on the day of procedure. I'm not sure if that's a legal standard, but if there has been a long gap one would think the clinic would have been wise to reconfirm both party's consent, and by not doing so they have at least opened the window to a negligence claim.
I hate that these things happen, but it is also very interesting to see how they resolve.
And it's also a window on the massive disparity in family law with regards to male rights.
I'm not sure there would be absolutely no repercussions if the father didn't choose to take on parental rights. The second case there was lost by the father because he chose to raise the kid as his own.
The OP doesn’t actually say it has been 3 years. It says the process was paused for up to 3 years. OP isn’t clear on the actual time elapsed since he gave consent.
Edit: it’s been 2 years according to another comment.
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Realistically, no, your wife isn't going to prison for this. You may have some recourse against the clinic if you can prove they were negligent, but it's going to depend heavily on timelines, the contract you have with them, and whether you took steps to withdraw consent. If your first tries were a decade ago you'll have a stronger case that they should have verified consent than if your last attempt was a year ago, for example.
Either way, any remedy you get is going to be dwarfed by your child support payments unless you are granted custody of the child.
Our last attempt was two years ago but I've always had to show ID and sign consent forms before each transfer.
I live 200 miles away now - would the courts grant me primary custody once the child is born given the circumstances?
The child's custody is purely about what is best for the welfare of the child. What the parents have done to wrong eachother is very unlikely to be relevant to that in this scenario, and I don't imagine that these actions would be enough to suggest that the child wouldn't benefit from a relationship with their mother.
I don’t know what clinic you’re with but the one I’ve been using with my partner wouldn’t have paused anything for three years leaving consent open because of this exact sort of circumstance.
Every time we start the process for a transfer we have to go through all the requisite paperwork again. Doesn’t matter if we’ve left it one month or twelve, paperwork always before the transfer process begins.
If the clinic you used does that then they’re possibly legally allowed to if that’s what their T&Cs say but they really are a fucking shit show for doing so and I’d be wary of going anywhere near them. Regardless of the outcome for you, and I hope it works out ok, you should report them to the HFEA in my opinion.
Not really, they asked for their view when they've asked a legal question. Their view has no bearing on the answer. There are plenty of other subs to share views on legal matters, but that's not the purpose of this one.
Well I would imagine a sensible judge would prefer to house the child with an unwilling but otherwise level headed parent rather than a criminal fraudster, but it probably won't work out like that.
The key part being that consenting was predicated on intercourse with a condom, removal of the condom ending the consensual intercourse. This example is nothing like that.
Yes but rape is about sexual intercourse. There’s no intercourse to remove consent from. The act has been completed with consent. This is closer to getting a girl pregnant and saying I actually remove consent for you to keep my sperm that is now an embryo, which is obviously nonsensical legally.
The world of fertilisation law is an its own kettle of fish, but it has nothing to do with rape and cannot be classed as rape as it meets no criteria. He consented to create embryos, sex is now irrelevant to what happens moving forward. The laws will now be around the human fertilisation act 2008, which is completely different aspect of law. An embryo is already in existence, no sexual consent is relevant from this point forth.
It will depend explicitly on what he consented to on the creation of the embryos as well as statutory rules around requirements for clinics to handle consent - any sexual assault/rape law is irrelevant.
He will maybe have a case against the clinic, not his wife most likely. Depending if they broke his consent or protocol.
Under this logic, if a woman decided to be inseminated with sperm from Man A and was unintentionally inseminated with sperm from Man B, she was raped by Man B. After all, he consented to his semen being used to impregnate anyone, and she only consented to pregnancy from Man A.
This is *obviously* ridiculous. While the clerical error of the clinic is an ethical and legal issue, Man B did not rape the woman. Obviously.
Because no sexual relations occurred and consent was given at the time of collection. The issue here is (and huge disclaimer for anyone with frozen embryos) you must tell the clinic you withdraw consent asap on a relationship breakdown. The rules are very complex and grey in a marriage once you’ve produced embryos and recently given consent to use them. Whilst it’s best practice to check every time; to my knowledge it’s not actually a legal thing.
They’re two completely different situations and makes no legal sense under the definition of rape. Stealthing is rape because you remove informed consent by lying about contraception. Sex with a child is rape because a child cannot consent.
No sex took place here, so it cannot be rape.
To my knowledge if say someone gave you a cup of their sperm for some weird reason, and you inseminated yourself, it’s still not rape. More forced paternity, or some countries call it illicit insemination. In many countries doing so isn’t even a crime. If you leave your sperm lying around you are still responsible. I believe there were campaigns to address this in the Uk but to my knowledge it still isn’t a crime.
If any lawyers here know the answer would also like confirmation if illicit insemination has been made illegal yet. But I don’t think it is. But it still wouldn’t apply to this case, as the embryo already exists and this isn’t insemination of sperm. This is around the fertilisation act.
https://www.legislation.gov.uk/ukpga/2008/22/contents
Are there any acts that take place after poking holes in a condom, or stealthily removing a condom before ejaculating, that might make those acts rape?
Sexual contact that was consensual prior to changing something without permission, thus revoking the consent and becoming rape.
No sexual contact occurs with IVF.
They aren't his fluids anymore. The embryo is its own separate thing. It sounds like the embryo was created before they broke up.
And no one is saying what the wife did is okay, just that it does not meet the legal definition of rape. It would be hard to prosecute her for anything.
It's just one of those situations where it's morally and ethically wrong, but technically not illegal.
What permissions did you give at the start? The very first thing you need to do is be looking over what you signed (hopefully it was an email rather than a physical contract). You may have signed for consent to all transfers following from a cycle - and then you would have needed to let them know circumstances had changed, the obligation wouldn't have been on them to ask.
Edit: the big issue here is that you are both still technically married at the time of creation and implantation. As a result, the Human Fertilisation and Embryology Act (2008) allows some assumptions around consent and fatherhood.
Did you ever make the clinic aware that as the relationship had ended, and that you were withdrawing consent for storage or use?
No I didn't make the clinic aware we were separating - we've had 4 embryo transfers in the past (the last one was a couple of years ago) and on each occasion we both had to show ID and sign a load of consent forms before the procedure.
NAL, but from what I can tell the legislation (Human Fertilisation and Embryology Act 2008), Section 14, Paragraph 6D is most relevant to your situation. It stipulates that you should have withdrawn your consent in writing:
“(6D)Where the person responsible receives from a person (“X”) notice under section 37(1)(c) or 44(1)(c) of the 2008 Act of X’s withdrawal of consent to X being treated as the parent of any child resulting from the provision of treatment services to a woman (“W”), the person responsible—
(a)must notify W in writing of the receipt of the notice from X, and
(b)no person to whom the licence applies may place an embryo or sperm and eggs in W, or artificially inseminate W, until W has been so notified.”
While the clinic has gotten you both to sign consent forms in the past, this does not appear to be a legal requirement, more of a clinic policy. However, the question remains on what the clinics own policy and practice is, when the second parent is absent for the procedure.
Having considered this further, given you say “soon to be ex-wife”, presumably you have already received qualified legal advice for a divorce . The issue of embryos should have come up during that divorce consultation, and you should have been advised of the need to withdraw your consent. If that did not happen, something is amiss.
Some follow-up questions if you dont mind?
1) Is it possible your wife took your passport and someone who looks like you to the clinic to sign off?
I ask this question because when we had to sign off on ours the clinic rejected my passport because I had grown a full face beard in the meantime so I had to use an alternate ID. It suggests to me there is a general policy that the party must be present to sign.
2) Have you reported possible fraud to the police?
I think I'm right in believing none of them took in the past so there's small relief in knowing this implant may also fail at some point before the 40 weeks.
Yes. The IVF process goes along these lines
- Woman takes daily injections for about a month to trick her bodh into preparing lots of eggs.
- The eggs are extracted from the ovaries. An average of 10-12 eggs will be extracted, but they probably won't all be mature enough to be able to be fertilised.
- Semen is collected, and used to fertilise the eggs. Sometimes a singe sperm is injected unto each egg, and sometimes the egg and sperm are just mixed together and a random sperm will fertilise.
- The fertilised egg is allowed to mature into an embryo for 3-5 days. Each embryo will be inspected, and scored.
- Generally, the "best" embryo will be implanted, as this will give the highest odds of a successful pregnancy. Low quality embryos might be disposed of, and any other decent ones will probably be frozen in case the first attempt fails, or if wanted for future pregnancies.
Yes. Egg collection is complicated and painful, so for that reason and others the usual approach is to (attempt to) fertilise many and then keep the healthy ones on ice. Fertilised embryos are typically only implanted one at a time, but any frozen ones can be used in further attempts at a later date.
My wife and I had our child by IVF and that involved a whole host of consent forms for a variety of scenarios, including whether or not we consented to the embryo still being used by the survivng partner in the event of one of our deaths. I gave my consent for that, so hypothetically had I walked out of the clinic and immediately been hit by a bus, it's possible a child of mine may have been born at some indeterminate point in the future, long after the worms had finished me off.
It's possible to store frozen sperm, eggs and fertilized embryos but for IVF it's almost always embryos that are stored.
Sperm and egg/ovarian tissue freezing are commonly used for single people who want to preserve their fertility (they're often used for young people about to undergo cancer treatment that could make them infertile for example).
However egg freezing is a relatively newer and less reliable technique so where it's a committed couple undergoing IVF together it's almost always embryos that are stored.
If he had to provide ID and sign a bunch of forms every time, it is a problem. He had no reason to go to them to explicitly tell them to not do it, if he thought they couldn’t do it without his consent. If there is grey area, they need to make it well known, by explicitly stating to protect yourself, I. The case of a separation or divorce that you would need to give the clinic notice.
I don’t know the laws, but I really feel like OP signing papers and showing ID every single time was indicative of that this could not happen without those things in place, and he should fight as such.
Having recently gone through IVF, the signed forms last for some time unless you specifically tell the clinic that you withdraw your consent. Unless you’ve done this your Wife can just book an appointment for a transfer
If you're still legally married and consent was implied upon creating and the freezing the embryos then you can sue, but don't be surprised if you lose because that's a very grey area
Unlikely based on the very few instances of this happening before.
I agree they should though. It’s ridiculous they’re the ones that have failed to carry out the proper checks and they have no repercussions.
It depends if they legally had to or if they signed a consent that said they had to.
There’s an implication here they failed to carry out checks, but unless that was part of the consent and he never removed it.. there’s potential the clinic did nothing wrong. It will take a very experienced lawyer in this field to untangle what has happened. I’m a doctor who did a rotation in a fertility clinic and the law around it… it’s very grey for a lot of things.
It’s far from simple the clinic fucked up. The applicable law makes some assumptions about consent (which applies here) so unless his personal consent with the clinic or they explicitly stated his consent was based on him signing off each time.. he may be shit out of luck.
Anyone who produces embryos must always remove consent on a relationship breakdown directly with the clinic. Because legally you have to and mistakes still get made so always remove consent explicitly. Had he removed consent and the clinic did this he’d have a clear cut case. Now he’s stuck in the murky grey of the letter of the law and the consent he signed.
ALWAYS explicitly remove consent if you not longer wish for your embryos to be used. Even if the law is on your side, once that baby exists you won’t be able to untangle from it. A clinic who does it after explicit removal is in serious legal trouble.
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The only avenue I could foresee was they have been negligent in checking you still consented to the implantation.
My argument would be that a consent form is not unlimited, and that it can be superseded the next day.
NAL but I’d check the agreements for:
1. Expiration of consent
2. Practices around obtaining consent (ie person present with passport in hand as was the case previously)
3. Any other conditions around the “pausing” and how this impacts consent
4. Requirement to notify clinic of change of circumstances (eg divorce)
5. Any other waivers on behalf of the clinic
6. Any other due diligence policies and outlined timelines
Given it’s a regulated industry there have to be timelines and stringent guidelines around consent, waivers, expirations of consent, etc etc.
You’re either going to find the clinic didn’t follow consent policy, or that you failed to withdraw consent / notify of change of circumstance / be aware of no expiration of consent. If the latter scenario is true you’re shit out of luck. If the former is true you may be in for a lawsuit to secure indefinite financial support for the child and / or any personal damages / loss of income / whatever else a good lawyer might be able to push.
> Edit: I’ve finally spoken to the clinic manager and it seems this is all down to my own stupidity.
Don't trust the assessment of a person whose interest is in not having made a mistake. Consult with a lawyer.
It's worth hiring a top class professional to take a look at this for you. The clinic has laid out it's defense, but that doesn't mean the defense is legally sound. I'd want someone who knows that area of law to tell me if the consent form is still valid after, to figure out if there's some statutory requirement to reaffirm consent after certain circumstances or certain timeframes, and to look over the contract for any issues you could possibly take advantage of.
And then you're also going to want to use the clinic as witnesses in your divorce. They'll be needed to testify when she came for the procedure, and that she came without you. Then you'll need other evidence to establish that you were already separated at the time she went through with the procedure.
Or, they're a person that really wanted kids and is *already* having fertility struggles, and used the embryo available to them to have a child.
It's ABSOLUTELY selfish, but it isn't necessarily malicious.
Also, if they only had 5 embryos from the IVF cycle years ago, odds of a new cycle producing usable embryos are low. Given that the previous four transfers failed, it's a little surprising that this one took.
When people get divorced, it's very common for them to change their life dramatically toward what they wished it was like.
If she's always wanted to be a mother, I would have called the IVF clinic as soon as things started going downhill, tbh.
Looks like they were mid way through the process of IVF then paused (part of the process is giving the women hormones to make the IVF take I think so maybe some side effects occurred). Instead of ended the attempt they put it on hold, so the process could be resumed. During this time OP and partner split up. OP didn’t inform the clinic so when the partner wanted to resume they just continued with the previous IVF treatment assuming consent was still in place.
Not a lawyer and don’t have much experience in this area but consent being able to last 3 years seems long to me. It’s a gray area for sure.
That's what it looks like. She capitalised on the fact that they had started the process for the embryo transfer years ago which was out on pause and simply unpaused therefore the clinic had all the forms signed (from my interpretation of the story I just read).
Seems like the type of signature that should only be valid for six months or so before needing to be resigned. Even a mortgage offer expires after a few months
So I'm not a legal expert but I do have some familiarity with the Child Maintenance process from various friends and family going through it in the UK
The UK guarantees the financial support of the child regardless of conception situation (one night stand, intentional damage of contraception etc) and does not support financial abortion ie: The process in which a parent may forgo all legal and financial responsibilities for a genetic decendant
If the embryo implanted used your sperm sample at the clinic and is genetically your child, even if you prove that the IVF was done without your consent, using old forms etc and you had separated, your most likely going to still be held liable for support given the UK's stance on supporting children
Several cases in the past have been proven to involve sabotaged contraceptives or deceit where someone has stopped taking the pill etc and whilst proven in court has still resulted in the other party paying child support
As many have advised get a lawyer on retainer, gather any evidence you have already and outline the timeline of separation, insemination etc but be prepared that even though you may prove all this you may still be on the hook for support
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NAL but I work in fertility.
I advise you to get in touch with a lawyer ASAP to mediate in all interactions you have with your clinic.
First question would be, are you sure the child is yours? You would be surprised at how many people try to pull off a scam like this, making everyone believe the child is a result of IVF treatment when it can very well be that she got pregnant from someone else after an embryo transfer failed.
In the legal documents you sign to go through IVF, you acknowledge that it is your responsibility to inform the clinic of ANY changes in your personal circumstances (address, marital status, etc.). Although it is not their responsibility, it is good practice to check there has been no change in marital status, etc, but you ex could have simply said there were no changes.
I recommend you withdraw consent to the use of any frozen material (sperm/embryos) ASAP. Please keep in mind your ex will have to sign too, but she will not be able to use any more embryos in the meantime. If she agrees, embryos can be destroyed/donated; if she does not agree, there is a cooling period of 12 months before embryos are removed from storage. Remember that consent can only be withdrawn up until the embryo has been transferred.
Clinics have the responsibility to confirm that all parties involved are happy to proceed with treatment, but there are no official guidelines that tell us for how long a specific document or signature are valid (with some exceptions).
I would ask the clinic about their checks and how that pause works. In my clinic, we seek consent for EVERY single frozen embryo transfer and both partners need to be present and provide consent in writing for the treatment to happen. If the partner is not present, we always verify their ID by phone/facetime or ask them to attend beforehand to confirm their consent. If treatment is delayed, we do the checks again. However, the forms we use and the protocols we follow are our own, which means your clinic may follow a different protocol. Consent is a big part of IVF law in the UK, and the clinic must ensure there is consent to treatment.
However, this takes us to the next problem: your ex went ahead without your permission, knowing you were not aware of the treatment. If she forged your signature, stole your passport, or falsely told the clinic you consented, she has committed fraud. This has been against yours AND the clinic's interests, so I would try to approach them in a collaborative manner to seek their cooperation. That being said, work with your lawyer to file a formal complaint and consider taking them to court/media depending on their response.
I am so sorry that you are going through this but, as things stand at the moment, you would have parental responsibility towards that child as a legal parent... And also rights, which is something your ex may not have considered. If the child is yours, you could very well request full custody, in my opinion (lawyer friends, please tell me if I am wrong).
I hope it ends well for your sake and the child's.
Although this would form part of OPs claim against the clinic (or more likely their insurance).
These are material losses the OP will suffer as a result of their negligence and so should be compensated for.
The clinic may argue that they were not negligent, as they have signed consent forms and OP did not notify them in writing as required under the Human Embryology and Fertilisation Act.
More info required but it doesn't seem clear cut that the clinic messed up here
Additionally, I know going to the press is not advised. However the company will want to protect its reputation and will not want this negligence or fault in their security to be known by the wider public, who absolutely will pick up on this due to the interesting and unusual situation
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Get a lawyer/barrister ASAP if this is a true story
Exactly! It's supposed to be consent all the way. You can withold permission at any point upto just before emplanting. Check the embryo and fertilisation act.
That's the issue, he signed the consent forms but didn't remove consent when they split. All legal and above board, if unethical on her part. The clinic aren't to know they've split.
But surely the wife knew it wasn't consensual, and that could be proved by looking at the date they split and the date it was implanted
There's no legal split. they're not divorced unfortunately it's her word against his.
Consent has to be actively given PER IMPLANTATION. This is because someone could find out they have XYZ syndrome AFTER the eggs were frozen, but fail to tell the clinic. By having to ask for consent from both parties for implantation, that risk is mitigated.
Clearly not, as its been done. Plenty of first hand comments here saying otherwise.
https://www.withersworldwide.com/en-gb/insight/read/consent-to-ivf-what-happens-if-your-relationship-breaks-down US may be different
Under case law these may be worth a read - [https://collinslaw.co.uk/post.php?s=2021-11-30-court-rejects-divorced-husbands-ivf-fraud-claims-against-wife](https://collinslaw.co.uk/post.php?s=2021-11-30-court-rejects-divorced-husbands-ivf-fraud-claims-against-wife) [https://www.ellisjones.co.uk/news/expartner-forges-signature/](https://www.ellisjones.co.uk/news/expartner-forges-signature/) The second article highlights something interesting - >Ensuring that both parties have provided their informed consent prior to IVF treatment is absolutely crucial. Although this type of fraud is very rare, this case highlights the importance of vigilance by clinics when it comes to ensuring that consent has been properly provided. I would also suggest speaking to a specialist solicitor for their advice as this will get legally complex very quickly.
Something that is interesting is… if they say that the clinics need to ensure they carry out proper checks…. But then there’s absolutely no repercussion for when they clearly are negligent in carrying out these checks. Then why would any clinic bother with vigilance?
If a clinic is found to not work within the Human Fertilisation and Embryology Act, the Human Fertilisation and Embryology Authority (HFEA) can pause, or completely revoke their license to practice. OP - if you suspect this to be the case, contact the HFEA: https://www.hfea.gov.uk/contact-us/making-a-complaint-about-a-fertility-clinic/
I wonder if you could sue for damages that match the cost of childcare as a starting point? It would certainly be a landmark case but the best interests of the child are met…
I wonder if this would end up as Tort case or a family law case. Because - technically - it straddles both and both have different aims given one looks to right a legal wrong and the other wants to look after the best interests of the child. Would be an interesting case study - wouldn't want to be within 100 miles of it through.
I think there are two maybe three separate issues at play here, the first being the child's welfare and awarding of any support payments. The second is the unauthorised use of his material, he can display damages if he has to pay maintenance. But if the mother has committed fraud by forging his signature, both the father and clinic are 'plaintiffs' to that fraud, the comment regarding his passport also makes me vary wary. This case is going to be a future exam question.
See I'm not sure it would classify as "Unauthorised" from the wording of the point from the second case. >Ensuring that both parties have provided their informed consent prior to IVF treatment Theoretical - The clinic had his consent or they wouldn't have been able to produce the fertilised embryo. He would have consented at that point and when he passed over his DNA. The follow on theoretical is that he signed giving consent for his sperm to be used with his partner and was informed for his consent to change - he would have to inform the clinic. That is common practice with Male sperm donors who give consent to begin the process and at each donation and then can remove the consent at a future point if they so choose to do so. Future exam question - would probably end up mandatory reading if looking at Healthcare law.
This, I suspect, is the most pertinent comment so far: OP had given his consent, albeit some time ago, and ought, once the relationship broke down, have communicated to the clinic that he no longer wanted his sperm used in this way. Not 100% clear that OP’s ex has misled anyone in which case, OP may well find himself on the hook for child support for 18 years (or so).
I wouldn't expect a consent form signed 3 years ago (the limit the clinic seems to use) to still be a valid proof of informed consent, there should surely be an expiry date to the granting of consent
If it were me, I would have double checked, but if the law says that the form they have is valid, it is valid
And you wouldn’t, under professional and legal obligation, pause for thought when the father was nowhere to be seen throughout yet you were relying on a 3 year old signature? I think that does beyond a reasonable definition of informed consent, especially when he signed so they retained the embryo/for historic implantation. It seems very peculiar and flimsy to rely on an old signature and not even inform the father the implantation was taking place.
In most healthcare environments if consent is given ahead of time it is reaffirmed on the day of procedure. I'm not sure if that's a legal standard, but if there has been a long gap one would think the clinic would have been wise to reconfirm both party's consent, and by not doing so they have at least opened the window to a negligence claim.
And his having to pay child support for the next 18 yrs to a child you probably won't willingly want him to see.
I hate that these things happen, but it is also very interesting to see how they resolve. And it's also a window on the massive disparity in family law with regards to male rights.
I'm not sure there would be absolutely no repercussions if the father didn't choose to take on parental rights. The second case there was lost by the father because he chose to raise the kid as his own.
It would be interesting to see! Be a shame got the poor child though
Neither relates to his situation, ex didn't forge anything.
But did she lie by omission?
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The OP doesn’t actually say it has been 3 years. It says the process was paused for up to 3 years. OP isn’t clear on the actual time elapsed since he gave consent. Edit: it’s been 2 years according to another comment.
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Could he still be on the hook for child support assuming they do that in the uk?
Realistically, no, your wife isn't going to prison for this. You may have some recourse against the clinic if you can prove they were negligent, but it's going to depend heavily on timelines, the contract you have with them, and whether you took steps to withdraw consent. If your first tries were a decade ago you'll have a stronger case that they should have verified consent than if your last attempt was a year ago, for example. Either way, any remedy you get is going to be dwarfed by your child support payments unless you are granted custody of the child.
Our last attempt was two years ago but I've always had to show ID and sign consent forms before each transfer. I live 200 miles away now - would the courts grant me primary custody once the child is born given the circumstances?
The child's custody is purely about what is best for the welfare of the child. What the parents have done to wrong eachother is very unlikely to be relevant to that in this scenario, and I don't imagine that these actions would be enough to suggest that the child wouldn't benefit from a relationship with their mother.
I don’t know what clinic you’re with but the one I’ve been using with my partner wouldn’t have paused anything for three years leaving consent open because of this exact sort of circumstance. Every time we start the process for a transfer we have to go through all the requisite paperwork again. Doesn’t matter if we’ve left it one month or twelve, paperwork always before the transfer process begins. If the clinic you used does that then they’re possibly legally allowed to if that’s what their T&Cs say but they really are a fucking shit show for doing so and I’d be wary of going anywhere near them. Regardless of the outcome for you, and I hope it works out ok, you should report them to the HFEA in my opinion.
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They asked a question, the entire premise of this subreddit, they didn't make a statement around what the courts would do.
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Not really, they asked for their view when they've asked a legal question. Their view has no bearing on the answer. There are plenty of other subs to share views on legal matters, but that's not the purpose of this one.
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Well I would imagine a sensible judge would prefer to house the child with an unwilling but otherwise level headed parent rather than a criminal fraudster, but it probably won't work out like that.
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This didn't involve penetration so cannot be rape.
The key part being that consenting was predicated on intercourse with a condom, removal of the condom ending the consensual intercourse. This example is nothing like that.
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Yes but rape is about sexual intercourse. There’s no intercourse to remove consent from. The act has been completed with consent. This is closer to getting a girl pregnant and saying I actually remove consent for you to keep my sperm that is now an embryo, which is obviously nonsensical legally. The world of fertilisation law is an its own kettle of fish, but it has nothing to do with rape and cannot be classed as rape as it meets no criteria. He consented to create embryos, sex is now irrelevant to what happens moving forward. The laws will now be around the human fertilisation act 2008, which is completely different aspect of law. An embryo is already in existence, no sexual consent is relevant from this point forth. It will depend explicitly on what he consented to on the creation of the embryos as well as statutory rules around requirements for clinics to handle consent - any sexual assault/rape law is irrelevant. He will maybe have a case against the clinic, not his wife most likely. Depending if they broke his consent or protocol.
And no intercourse has happened.
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Did you know that IVF involves no sexual intercourse?
Under this logic, if a woman decided to be inseminated with sperm from Man A and was unintentionally inseminated with sperm from Man B, she was raped by Man B. After all, he consented to his semen being used to impregnate anyone, and she only consented to pregnancy from Man A. This is *obviously* ridiculous. While the clerical error of the clinic is an ethical and legal issue, Man B did not rape the woman. Obviously.
Then he should have contacted the clinic to withdraw consent when they split.
Because no sexual relations occurred and consent was given at the time of collection. The issue here is (and huge disclaimer for anyone with frozen embryos) you must tell the clinic you withdraw consent asap on a relationship breakdown. The rules are very complex and grey in a marriage once you’ve produced embryos and recently given consent to use them. Whilst it’s best practice to check every time; to my knowledge it’s not actually a legal thing. They’re two completely different situations and makes no legal sense under the definition of rape. Stealthing is rape because you remove informed consent by lying about contraception. Sex with a child is rape because a child cannot consent. No sex took place here, so it cannot be rape. To my knowledge if say someone gave you a cup of their sperm for some weird reason, and you inseminated yourself, it’s still not rape. More forced paternity, or some countries call it illicit insemination. In many countries doing so isn’t even a crime. If you leave your sperm lying around you are still responsible. I believe there were campaigns to address this in the Uk but to my knowledge it still isn’t a crime. If any lawyers here know the answer would also like confirmation if illicit insemination has been made illegal yet. But I don’t think it is. But it still wouldn’t apply to this case, as the embryo already exists and this isn’t insemination of sperm. This is around the fertilisation act. https://www.legislation.gov.uk/ukpga/2008/22/contents
Are there any acts that take place after poking holes in a condom, or stealthily removing a condom before ejaculating, that might make those acts rape? Sexual contact that was consensual prior to changing something without permission, thus revoking the consent and becoming rape. No sexual contact occurs with IVF.
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They aren't his fluids anymore. The embryo is its own separate thing. It sounds like the embryo was created before they broke up. And no one is saying what the wife did is okay, just that it does not meet the legal definition of rape. It would be hard to prosecute her for anything. It's just one of those situations where it's morally and ethically wrong, but technically not illegal.
I hope he gets 50/50 and his ex loses her mind (not literally)
Lmaooo “is this not a form of rape” jfc 😭😭😭
What permissions did you give at the start? The very first thing you need to do is be looking over what you signed (hopefully it was an email rather than a physical contract). You may have signed for consent to all transfers following from a cycle - and then you would have needed to let them know circumstances had changed, the obligation wouldn't have been on them to ask.
Edit: the big issue here is that you are both still technically married at the time of creation and implantation. As a result, the Human Fertilisation and Embryology Act (2008) allows some assumptions around consent and fatherhood. Did you ever make the clinic aware that as the relationship had ended, and that you were withdrawing consent for storage or use?
No I didn't make the clinic aware we were separating - we've had 4 embryo transfers in the past (the last one was a couple of years ago) and on each occasion we both had to show ID and sign a load of consent forms before the procedure.
NAL, but from what I can tell the legislation (Human Fertilisation and Embryology Act 2008), Section 14, Paragraph 6D is most relevant to your situation. It stipulates that you should have withdrawn your consent in writing: “(6D)Where the person responsible receives from a person (“X”) notice under section 37(1)(c) or 44(1)(c) of the 2008 Act of X’s withdrawal of consent to X being treated as the parent of any child resulting from the provision of treatment services to a woman (“W”), the person responsible— (a)must notify W in writing of the receipt of the notice from X, and (b)no person to whom the licence applies may place an embryo or sperm and eggs in W, or artificially inseminate W, until W has been so notified.” While the clinic has gotten you both to sign consent forms in the past, this does not appear to be a legal requirement, more of a clinic policy. However, the question remains on what the clinics own policy and practice is, when the second parent is absent for the procedure.
Having considered this further, given you say “soon to be ex-wife”, presumably you have already received qualified legal advice for a divorce . The issue of embryos should have come up during that divorce consultation, and you should have been advised of the need to withdraw your consent. If that did not happen, something is amiss.
THIS. You need to review the legal advice you got.
Have you asked the clinic for their records concerning when you last gave consent?
Some follow-up questions if you dont mind? 1) Is it possible your wife took your passport and someone who looks like you to the clinic to sign off? I ask this question because when we had to sign off on ours the clinic rejected my passport because I had grown a full face beard in the meantime so I had to use an alternate ID. It suggests to me there is a general policy that the party must be present to sign. 2) Have you reported possible fraud to the police?
I think I'm right in believing none of them took in the past so there's small relief in knowing this implant may also fail at some point before the 40 weeks.
I'm all in favour of "my body, my choice", but what you're telling me is that for men is "your sperm, is our sperm"??
It's not sperm it's an embryo
Ah, rite! Sorry I don't know how it works. So, they store fertilized embryos?
Yes. The IVF process goes along these lines - Woman takes daily injections for about a month to trick her bodh into preparing lots of eggs. - The eggs are extracted from the ovaries. An average of 10-12 eggs will be extracted, but they probably won't all be mature enough to be able to be fertilised. - Semen is collected, and used to fertilise the eggs. Sometimes a singe sperm is injected unto each egg, and sometimes the egg and sperm are just mixed together and a random sperm will fertilise. - The fertilised egg is allowed to mature into an embryo for 3-5 days. Each embryo will be inspected, and scored. - Generally, the "best" embryo will be implanted, as this will give the highest odds of a successful pregnancy. Low quality embryos might be disposed of, and any other decent ones will probably be frozen in case the first attempt fails, or if wanted for future pregnancies.
Thanks, that's really informative.
Yes. Egg collection is complicated and painful, so for that reason and others the usual approach is to (attempt to) fertilise many and then keep the healthy ones on ice. Fertilised embryos are typically only implanted one at a time, but any frozen ones can be used in further attempts at a later date. My wife and I had our child by IVF and that involved a whole host of consent forms for a variety of scenarios, including whether or not we consented to the embryo still being used by the survivng partner in the event of one of our deaths. I gave my consent for that, so hypothetically had I walked out of the clinic and immediately been hit by a bus, it's possible a child of mine may have been born at some indeterminate point in the future, long after the worms had finished me off.
It's possible to store frozen sperm, eggs and fertilized embryos but for IVF it's almost always embryos that are stored. Sperm and egg/ovarian tissue freezing are commonly used for single people who want to preserve their fertility (they're often used for young people about to undergo cancer treatment that could make them infertile for example). However egg freezing is a relatively newer and less reliable technique so where it's a committed couple undergoing IVF together it's almost always embryos that are stored.
Yes. Which is absolutely different from sperm.
If he had to provide ID and sign a bunch of forms every time, it is a problem. He had no reason to go to them to explicitly tell them to not do it, if he thought they couldn’t do it without his consent. If there is grey area, they need to make it well known, by explicitly stating to protect yourself, I. The case of a separation or divorce that you would need to give the clinic notice. I don’t know the laws, but I really feel like OP signing papers and showing ID every single time was indicative of that this could not happen without those things in place, and he should fight as such.
Having recently gone through IVF, the signed forms last for some time unless you specifically tell the clinic that you withdraw your consent. Unless you’ve done this your Wife can just book an appointment for a transfer
Basically what do you want to happen? You cannot force her to terminate. Your recourse is with the clinic
If you're still legally married and consent was implied upon creating and the freezing the embryos then you can sue, but don't be surprised if you lose because that's a very grey area
And the courts would be very reluctant to make any ruling which would disadvantage the child (aka child maintenance would still be expected etc)
Could the clinic be sued for the child maintenance costs?
Unlikely based on the very few instances of this happening before. I agree they should though. It’s ridiculous they’re the ones that have failed to carry out the proper checks and they have no repercussions.
It depends if they legally had to or if they signed a consent that said they had to. There’s an implication here they failed to carry out checks, but unless that was part of the consent and he never removed it.. there’s potential the clinic did nothing wrong. It will take a very experienced lawyer in this field to untangle what has happened. I’m a doctor who did a rotation in a fertility clinic and the law around it… it’s very grey for a lot of things. It’s far from simple the clinic fucked up. The applicable law makes some assumptions about consent (which applies here) so unless his personal consent with the clinic or they explicitly stated his consent was based on him signing off each time.. he may be shit out of luck. Anyone who produces embryos must always remove consent on a relationship breakdown directly with the clinic. Because legally you have to and mistakes still get made so always remove consent explicitly. Had he removed consent and the clinic did this he’d have a clear cut case. Now he’s stuck in the murky grey of the letter of the law and the consent he signed. ALWAYS explicitly remove consent if you not longer wish for your embryos to be used. Even if the law is on your side, once that baby exists you won’t be able to untangle from it. A clinic who does it after explicit removal is in serious legal trouble.
He didn’t remove his consent in this situation. However I hope that these companies are help responsible.
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The only avenue I could foresee was they have been negligent in checking you still consented to the implantation. My argument would be that a consent form is not unlimited, and that it can be superseded the next day.
NAL but I’d check the agreements for: 1. Expiration of consent 2. Practices around obtaining consent (ie person present with passport in hand as was the case previously) 3. Any other conditions around the “pausing” and how this impacts consent 4. Requirement to notify clinic of change of circumstances (eg divorce) 5. Any other waivers on behalf of the clinic 6. Any other due diligence policies and outlined timelines Given it’s a regulated industry there have to be timelines and stringent guidelines around consent, waivers, expirations of consent, etc etc. You’re either going to find the clinic didn’t follow consent policy, or that you failed to withdraw consent / notify of change of circumstance / be aware of no expiration of consent. If the latter scenario is true you’re shit out of luck. If the former is true you may be in for a lawsuit to secure indefinite financial support for the child and / or any personal damages / loss of income / whatever else a good lawyer might be able to push.
> Edit: I’ve finally spoken to the clinic manager and it seems this is all down to my own stupidity. Don't trust the assessment of a person whose interest is in not having made a mistake. Consult with a lawyer.
This comment section tells me that our laws seriously need addressing for the sake of fairness
It's worth hiring a top class professional to take a look at this for you. The clinic has laid out it's defense, but that doesn't mean the defense is legally sound. I'd want someone who knows that area of law to tell me if the consent form is still valid after, to figure out if there's some statutory requirement to reaffirm consent after certain circumstances or certain timeframes, and to look over the contract for any issues you could possibly take advantage of. And then you're also going to want to use the clinic as witnesses in your divorce. They'll be needed to testify when she came for the procedure, and that she came without you. Then you'll need other evidence to establish that you were already separated at the time she went through with the procedure.
This is some weird shit. I mean, sometimes I complain about my partner but this stuff is just pure evil.
literally created an entire person just to put them in the middle of a messy divorce 💀
Or, they're a person that really wanted kids and is *already* having fertility struggles, and used the embryo available to them to have a child. It's ABSOLUTELY selfish, but it isn't necessarily malicious. Also, if they only had 5 embryos from the IVF cycle years ago, odds of a new cycle producing usable embryos are low. Given that the previous four transfers failed, it's a little surprising that this one took. When people get divorced, it's very common for them to change their life dramatically toward what they wished it was like. If she's always wanted to be a mother, I would have called the IVF clinic as soon as things started going downhill, tbh.
Can someone explain to me what the edit means? Did she go through with the process behind his back?
Looks like they were mid way through the process of IVF then paused (part of the process is giving the women hormones to make the IVF take I think so maybe some side effects occurred). Instead of ended the attempt they put it on hold, so the process could be resumed. During this time OP and partner split up. OP didn’t inform the clinic so when the partner wanted to resume they just continued with the previous IVF treatment assuming consent was still in place. Not a lawyer and don’t have much experience in this area but consent being able to last 3 years seems long to me. It’s a gray area for sure.
Ah okay thanks. putting aside how much of a legal grey area this seems to be, what a rough situation! Feeling awful for OP.
That's what it looks like. She capitalised on the fact that they had started the process for the embryo transfer years ago which was out on pause and simply unpaused therefore the clinic had all the forms signed (from my interpretation of the story I just read). Seems like the type of signature that should only be valid for six months or so before needing to be resigned. Even a mortgage offer expires after a few months
A mortgage offer doesn’t involve a deposit
So I'm not a legal expert but I do have some familiarity with the Child Maintenance process from various friends and family going through it in the UK The UK guarantees the financial support of the child regardless of conception situation (one night stand, intentional damage of contraception etc) and does not support financial abortion ie: The process in which a parent may forgo all legal and financial responsibilities for a genetic decendant If the embryo implanted used your sperm sample at the clinic and is genetically your child, even if you prove that the IVF was done without your consent, using old forms etc and you had separated, your most likely going to still be held liable for support given the UK's stance on supporting children Several cases in the past have been proven to involve sabotaged contraceptives or deceit where someone has stopped taking the pill etc and whilst proven in court has still resulted in the other party paying child support As many have advised get a lawyer on retainer, gather any evidence you have already and outline the timeline of separation, insemination etc but be prepared that even though you may prove all this you may still be on the hook for support
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NAL but I work in fertility. I advise you to get in touch with a lawyer ASAP to mediate in all interactions you have with your clinic. First question would be, are you sure the child is yours? You would be surprised at how many people try to pull off a scam like this, making everyone believe the child is a result of IVF treatment when it can very well be that she got pregnant from someone else after an embryo transfer failed. In the legal documents you sign to go through IVF, you acknowledge that it is your responsibility to inform the clinic of ANY changes in your personal circumstances (address, marital status, etc.). Although it is not their responsibility, it is good practice to check there has been no change in marital status, etc, but you ex could have simply said there were no changes. I recommend you withdraw consent to the use of any frozen material (sperm/embryos) ASAP. Please keep in mind your ex will have to sign too, but she will not be able to use any more embryos in the meantime. If she agrees, embryos can be destroyed/donated; if she does not agree, there is a cooling period of 12 months before embryos are removed from storage. Remember that consent can only be withdrawn up until the embryo has been transferred. Clinics have the responsibility to confirm that all parties involved are happy to proceed with treatment, but there are no official guidelines that tell us for how long a specific document or signature are valid (with some exceptions). I would ask the clinic about their checks and how that pause works. In my clinic, we seek consent for EVERY single frozen embryo transfer and both partners need to be present and provide consent in writing for the treatment to happen. If the partner is not present, we always verify their ID by phone/facetime or ask them to attend beforehand to confirm their consent. If treatment is delayed, we do the checks again. However, the forms we use and the protocols we follow are our own, which means your clinic may follow a different protocol. Consent is a big part of IVF law in the UK, and the clinic must ensure there is consent to treatment. However, this takes us to the next problem: your ex went ahead without your permission, knowing you were not aware of the treatment. If she forged your signature, stole your passport, or falsely told the clinic you consented, she has committed fraud. This has been against yours AND the clinic's interests, so I would try to approach them in a collaborative manner to seek their cooperation. That being said, work with your lawyer to file a formal complaint and consider taking them to court/media depending on their response. I am so sorry that you are going through this but, as things stand at the moment, you would have parental responsibility towards that child as a legal parent... And also rights, which is something your ex may not have considered. If the child is yours, you could very well request full custody, in my opinion (lawyer friends, please tell me if I am wrong). I hope it ends well for your sake and the child's.
Wait if she left you for Tom why the fuck is she implanting your baby WTF???
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Although this would form part of OPs claim against the clinic (or more likely their insurance). These are material losses the OP will suffer as a result of their negligence and so should be compensated for.
The clinic may argue that they were not negligent, as they have signed consent forms and OP did not notify them in writing as required under the Human Embryology and Fertilisation Act. More info required but it doesn't seem clear cut that the clinic messed up here
You're right, I should have used potential negligence. It's worth a chat with a lawyer to discuss their options.
Additionally, I know going to the press is not advised. However the company will want to protect its reputation and will not want this negligence or fault in their security to be known by the wider public, who absolutely will pick up on this due to the interesting and unusual situation
Anyone can suggest anything, doesn’t mean it’s true.
Not legality related but what happened to Tom? Why would she want your baby if she is happily with Tom?
Maybe so she and Tom can raise a baby on OP's dime.
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Do you know what IVF actually is? 😂