Laws of Eve | Parentage by consent
Whenever I think about the harvesting and freezing of eggs, sperm and embryo, artificial insemination and surrogacy, I become concerned about the real possibility that our courts could be confronted with legal issues about which no legislation exists in Jamaica. In that regard, we are lagging way behind many other jurisdictions, although assisted reproductive technology, including freezing of sperm and embryo and in vitro ferilisation, has been offered in Jamaica since 2000.
The reason I am concerned about the lawsuits is that, if you researched the UK’s Human Fertilisation And Embryology Act 2008, you will find a number of reported cases. Many of those cases arose because of poor record-keeping and storage in the fertility clinic and a failure to adhere to the procedures outlined in the act.
In the most recent decision delivered on October 5, 2016 – Case V  EWHC 2356 (Fam) – some of the issues the Jamaican legislators need to address were raised. It concerned a same-sex couple (two females) who agreed that one party (X) would undergo in vitro fertilisation to conceive a child. They both signed documents at the clinic consenting to the treatment and agreed to be the parents of the child.
After the birth of the child, the parties obtained a birth certificate on which they were both named as the parents. However, the clinic (while under investigation) later contacted the parties and advised that there was no record of “Consent to Your Partner being the Legal Parent” that had been signed by X’s partner, Y. By law, both parties had to sign the consent for them to become the parents of the child.
In Y’s claim for a declaration of parentage, the judge concluded that the relevant consent form had been signed prior to treatment and must have been lost or misplaced. The declaration for the following reasons:
1. In their evidence at court, X and Y confirmed that they had both consented to the treatment and to become parents of the child.
2. X and Y both signed what they believed to be all necessary documents, including the various consent forms, under the direction and guidance of the nurse at the clinic.
3. Based on the doctor’s notes, prior to the start of treatment, he reviewed the consent forms and X, Y and the doctor all signed the clinic’s Pre-Assessment Checklist that included references to the various consent forms.
4. The nurse’s notes also indicated that the consent forms had been completed and signed.
In a similar case –Re O EWHC 2356 (Fam) – X and Y were married. Both underwent in vitro fertilisation and conceived one child each. Again, due to the failure of the clinic to adhere to the procedures set out in the act, X’s consent to parent Y’s child could not be found. X and Y adopted that child so that X could be the legal parent of Y’s child, but later sought a declaration of parentage. That declaration was granted for reasons similar to those accepted in Re V, and the adoption order was reversed, because X was already the legal parent of Y’s child.
If these cases were before the Jamaican courts, the outcomes would have been different for at least two known reasons. First, only a man and a woman would be recognised as the parents of a child. Second, two women would not have been able to adopt a child together in Jamaica.
Below are a few of the issues that Jamaican laws urgently need to address:
- What form of consent is required prior to the commencement of treatment?
- Will the persons who consented to treatment be treated as the legal parents of the child?
- How are embryos created outside of the human body (irrespective of the form of creation) to be regulated?
- Who owns the eggs, sperm and embryo that are harvested or created through fertility treatment?
- Are sperm, egg and embryo donation permitted in Jamaica?
I have been told that legislation is being drafted, and I hope it comes to light before the first case in this area goes before the court.