High Court rules dead partner’s sperm can be kept despite lack of written consent
12 March 2014
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
Mrs Warren turned to the courts to determine the following question: could her Article 8 rights in combination with Section 3 of the Human Rights Act (HRA) 1998 be relied on for a declaration that a longer period of storage was lawful? The Northampton CARE Clinic (the ‘Clinic’) and the Human Fertilisation and Embryology Authority (HFEA) were interested parties.
Facts and Legal Framework
Mr Warren Brewer died on 9 February 2012, and was survived by his wife Elizabeth Warren. In April 2005, prior to receiving cranio-spinal radiotherapy treatment for a brain tumour, Mr Brewer put his sperm into storage with the Northampton CARE Clinic. He consented to its continued storage until 18 April 2015, but it was his recognised wish and intention that it should in fact be stored beyond this period.
As a matter of law, it was open to him to ensure that this happened. Regulations introduced in 2009 provided statutory conditions for the storage of gametes. Regulation 7 covered storage of those gametes which were already in storage at the time the Regulations came into force, and provided under sub-paragraph (2) that such gametes can be stored for longer than 10 years in certain circumstances. Those circumstances are set out in Regulation 7(3):
(3) The circumstances referred to in sub-paragraph 2(a) are that
(a) the person who provided the gamete in question has consented in writing, whether before or after the coming into force of these Regulations, to the gamete being stored for a period in excess of ten years for the provision of treatment services; and
(b) on any day within the relevant period but after the coming into force of these Regulations, a registered medical practitioner has given a written opinion that the gamete provider… is prematurely infertile or is likely to become prematurely infertile.
Regulation 7(2)(a) provides that sperm can be stored for ten years beyond the date of the most recent medical opinion provided.
In the event, Mr Brewer was not advised by the Clinic as to the formal steps he needed to take in order for such storage to be lawful, and as a result of this did not in fact take the steps required (at [95-98]). After his death, a medical opinion was provided to the effect that he had been likely to become prematurely infertile at the point at which he put his gametes into storage.
Difficulties Facing Mrs Warren
Hogg J identified the two difficulties facing Mrs Warren at the beginning of her discussion.
(1) Although there were times at which Mr Brewer had provided consent which was not time-limited, Hogg J observed that Mr Brewer ‘did not give his written consent as required by Regulation 7(3)(a) to the gametes being stored for a period in excess of ten years for the provision of treatment services’ (at ). She repeated this observation at  and .
(2) As regards Regulation 7(3)(b), a medical opinion attesting Mr Brewer’s likely infertility had been provided after his death. However, it was argued by the HFEA that the Regulation does not allow for the provision of a medical opinion after death because it is phrased in the present tense: ‘the gamete-provider … is prematurely infertile’, etc. Hogg J operated on the basis that that is the natural reading of the provision (see, eg, at ).
She concluded that ‘if the Regulations are wholly binding and cannot be interpreted in a purposive way his gametes would be allowed to perish in April/May 2015’ (at ).
In order for Mrs Warren to be granted the declaration of lawfulness in the terms sought, she therefore had to overcome the requirements of the 2009 Regulations. Could section 3 HRA 1998 provide the necessary assistance?
Section 3 HRA 1997; Article 8 ECHR
At  onwards, Hogg J considered whether section 3 and Article 8 could come to Mrs Warren’s aid. By way of brief legal background:
(1) The role and function of section 3 HRA 1998 can be briefly described as a duty to read and give effect to legislation in a way that is compatible with Convention Rights.
(2) Article 8 protects the right to respect for an individual’s private and family life (it is explained in more detail here), and it was taken by Hogg J to include the right for a widow to decide to become a parent by her deceased husband.
Hogg J focused initially on the requirement under Regulation 7(3)(b) to provide a medical opinion whilst the gamete-provider was alive. She noted at  that, if that were the right interpretation, no new medical opinion could be obtained after a gamete-provider’s death, and sperm could only ever be stored for a maximum of ten years posthumously (see Regulation 7(2)(a) above). This she found to be an unjustified interference with a widow’s right to conceive a child by her deceased husband, and noted that it did not tally with Parliament’s intention that storage should be possible for 55 years in total (at ). As a result, Hogg J gave a new reading to Regulation 7(3)(b) under section 3 HRA 1998. She found that it should be interpreted so as to include the words ‘was, or may have been likely to become prematurely infertile’ (at ). This meant, for Mrs Warren’s purposes, that the posthumous opinion provided was sufficient for the purposes of the regulations.
This left the question of consent. Hogg J mentioned simply in the final stages of her analysis that ‘the deceased’s wish and intention is known, be it all not recorded in accordance with the Regulations in the circumstances I have outlined’ (at ). The matter is not raised again before her conclusion and the grant of the declaration.
Comment: What happened to consent?
The new ‘Article-8 compliant’ reading given to Regulation 7(3)(b) by Hogg J is perfectly comprehensible in principle. Nonetheless, there is a pervading sense in the judgment that the ‘remedy’ on the whole does not match the mischief identified. As Hogg J was at pains to emphasise, it is really the Clinic (not the Regulations) that has failed Mrs Warren and caused the ‘great and conspicuous unfairness’ complained of (at ). This, of course, is not something for which a private action against the Clinic would provide a meaningful remedy. Nor indeed could the Clinic’s failings somehow ‘estop’ the operation of the statute in Mr Brewer’s case, whereby the Regulations should be held not apply because the position has been unfairly represented to him. Hogg J recognised that pursuing the Clinic would not lead to a solution (at ).
Section 3 HRA 1998 was ultimately used to interpret Regulation 7(3)(b) on a basis which had nothing to do with the failures of the Clinic. This feels instinctively to be the correct approach: it surely cannot be right that section 3 HRA 1998 should be used to cause statute to accommodate the failings of third parties. Hogg J avoids doing so.
Nonetheless, the judgment as a whole derives its momentum from a deep sense of unfairness. Concern that it is this impetus which swept aside the somewhat trickier question of consent would not be misplaced. Hogg J had, conceivably, a number of options open to find as a matter of fact or law that Mr Brewer gave his consent. Principally these would be a finding either (1) that the necessary consent was in fact given by the non-time limited consents; or (2) that the consent requirement should in some way be read-down by section 3 because written consent amounts to an unjustified interference with Article 8 rights.
However, Hogg J expressly finds against the first option in multiple instances (see, eg, at ,  and ). As for the second option, it would have been very difficult to find that a safeguard requiring written consent amounted to an unjustified restriction on a widow’s Article-8 right to conceive by her dead husband. Consent is not burdensome in the giving, and fulfils an important (and, in many fields, crucial) function. Quite apart from protecting the deceased’s autonomy of decision, it could prevent easily conceivable dispute between his widow and his other relations after his death. It was not in issue in this case, but might not a brother or mother find unbearable the prospect of a child being posthumously conceived where the deceased’s wishes are in issue, and he hasn’t given his consent in a clearly defined and accessible way?
Whatever the analysis adopted, it should not have been one which imported quasi-equitable considerations into the law of consent which effectively decided the issue because Mr Brewer had done all that it was in his power to do. Although the exact circumstances of this case may be few and far between, the question of consent is central to a great number of vital medical processes and choices. The HFEA’s concern that the declaration was made in circumstances where consent was expressly found not to have been given is, in the circumstances, understandable. They currently seek permission to appeal.
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