A High Court judge has criticised a Harley Street IVF clinic for “troubling and illogical” procedures that let a woman have a secret baby after forging the father’s signature.
Although ruling that the father had lost his claim for £1 million damages against IVF Hammersmith Ltd, Mr Justice Jay said his judgement was a “complete personal and moral vindication” for the wealthy businessman.
The father, who is in his 50’s and cannot be named, was told by text message on Valentine’s Day 2011 by his ex-girlfriend that she was pregnant from embryos they had frozen when together three years earlier and having their first child.
Mr Justice Jay said he concluded that the female teacher resorted to “desperate and dishonest” means by forging her ex-boyfriend’s signature in 2010 to be able to have a sibling for the son they had in 2008.
The father, who split up with the mother nearly a year before learning of her second pregnancy, was seeking up to £1 million to pay for his now six-year-old daughter’s private education, nanny care, skiing holidays and wedding.
While the judge found the clinic had breached its duty to ensure both parents had given consent for the embryo to be placed in the mother’s womb, it had not been negligent.
The judge added: "Although he has lost this case, my judgment must be seen as a complete personal and moral vindication for him.
"The same, of course, cannot be said for her."
The businessman, an architect and designer, condemned Britain’s private IVF industry for being “like the Wild West”. He also claimed the Human Fertilisation and Embryology Authority (HFEA) treated his concerns about a “loophole” in the way both parents’ signatures were obtained at the clinic “frivolously”.
He said: “It is time to re-evaluate our approach to the governance of private IVF services and demand the replacement of an ineffective regulator – one with systemic failures and repeatedly castigated in the courts – with one fit enough to effectively protect the public.”
The HFEA refused to comment.
Although it is understood that the father faces hundreds of thousands of pounds in legal costs, he plans to appeal, insisting that the action “was never about the money”.
Concluding that the father was the victim of a “legal wrong”, the judge said he was “completely satisfied” he had no intention of having another child with the teacher after they split up in mid 2010.
"In October 2010, she well knew that, which explains why she resorted to desperate, dishonest measures,” he says, adding that the daughter - “a lovely, healthy girl” who lived with the mother while the father discharged his parental duties - was born in “extremely fraught, possibly unique, circumstances”.
Criticising the clinic’s procedures, he said it was “illogical” that if both partners were present then their signatures should be witnessed, but if one partner was not there a signed form would suffice as proof of consent.
He added that it was “troubling” that the errors in this case could have happened even if the father had not attended any clinic appointments.
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Welcoming the judgement, the father said: "We went into this knowing the financial risk to our family in terms of immense legal fees.
"However, this fear was delicately balanced against the burning need to right a fundamental wrong, and to share our awful experience with fellow citizens.
"It has been an immensely painful journey, now amplified by the legal-cost burden, yet it is one we do not regret."
Jude Fleming, of IVF Hammersmith, which denied liability, said she was pleased the court found in the clinic’s favour because it acted with “reasonable care”.
“We have been clear throughout that we have always adhered to the highest industry standards and met all statutory and regulatory obligations as set out by the HFEA,” she said.
“We regularly review our processes and we have since reinforced our procedures to go above and beyond the industry standard and ensure such a case could not occur again.”