The High Court was faced with tragic circumstances and the difficult question of whether EF could use an embryo created with his sperm and his late wife’s eggs in treatment with a surrogate.
Background:
EF and AB grew up in country G and married in 2005. They are both active members of a religion (unspecified in this case) that holds the sanctity of life and the divine purpose of all life forms as its core beliefs.
They wanted children, but AB had difficulties carrying a child. She miscarried in 2008 and gave birth to their eldest daughter in 2009 after only six months gestation. They were referred to the King's Unit in 2017. During their treatment in 2017, two healthy embryos were created, one of which was transferred and the other stored. Sadly, shortly after giving birth to Y, AB and Y unexpectedly died.
EF made an application to use the second embryo in treatment with a surrogate to honour AB’s wishes and give their older child a genetic sibling. The Human Fertilisation and Embryology Authority (HFEA) opposed the application on the basis that there was insufficient consent from his late wife (AB).
Decision:
The High Court acceded to the demand even in the absence of a signed written consent form for the use of the embryo.
The Court however noted that there was a discrepancy between the HFEA forms as the men’s consent form included a section (Section 6.4) allowing a partner to use any embryos or sperm in case of death. The same provision did not however appear on the women’s form. Based on this finding and the evidence given, Theis J was satisfied that AB had consented to EF using the embryo. The Judge noted that “AB was not given the opportunity to consent to EF being able to use their partner-created embryo in treatment with a surrogate in the event of her death due to an omission in the HFEA scheme”. She continued by saying that AB was “not clearly told about the need to complete them in order to evidence her consent to the posthumous use of her embryos by EF”.
The Court agreed with EF that refusal to use the embryo was a disproportionate interference with Article 8 of the European Convention on Human Rights (ECHR). Theis J noted that the requirement of consent was paramount to the Human Fertilisation and Embryology Act 1990, as amended, and reflects the importance of personal autonomy. Theis J argued that “The insistence on written consent would, in the particular circumstances of this case, defeat rather than promote this objective of the legislative scheme. In circumstances where the interference with EF’s Article 8 rights would be significant, final and lifelong, there are no countervailing factors to justify the interference as, in the circumstances, permitting the application would not undermine a fundamental objective of the statutory scheme.”
Theis J was, therefore, satisfied that Schedule 3 of the HFEA 1990 should be read as introducing an implied discretion for the Court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Article 8 ECHR.
Implications:
Although very fact-specific, this case is not an unusual story. In this case, the declaration was sought by the father rather than the mother. This case was successful as the applicant demonstrated a breach of his ECHR rights.
Despite various high-profile cases, the consent requirements imposed by the HFEA are still in place. For instance, in 1997, Mrs. Blood battled the system and the written consent requirement to have the right to use her late husband’s sperm. Her request was only successful because of EU law. A case such as the one at hand gives hope that the system might yet change and that judges are evidently willing to alleviate the pain those applicants face. Finally, it is important to have evidence of the deceased person’s wishes to help the Court with its decision.
