Fertility regulator wrongfully denied consent for mother’s surrogacy

Pregnant-woman-001M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)

The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.

The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.

The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.

Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.

Background facts

When she realised that she was going to die, A had said to M

They are never going to let me leave this hospital, Mum; the only way I will get out of here will be in a body bag. I want you to carry my babies. I didn’t go through the IVF to save my eggs for nothing. I want you and Dad to bring them up. They will be safe with you. I couldn’t have wanted for better parents, I couldn’t have done without you.

However, “effective” consent is a cornerstone of the Act governing the HFEA, and the requisite form had not been completed. The Committee also considered that there was no evidence that A had or would have consented to the use of an anonymous sperm donor. The HFEA was also concerned that

A had had ample time, for example between the conversation in about January 2010 and June 2011 to put in place clear instructions, or discuss with others, any wishes for her mother to carry her embryos (fertilised by donor sperm). None of the conversations contemplated or considered the use of donor sperm outside the UK and the particular implications of such arrangements.

Ouseley J found the Comittee’s decision to be lawful and rational.

Arguments before the Court of Appeal

M contended that the Committee had reached an irrational decision. It said that it did not have evidence on whether her daughter had tried to seek out more information about “this treatment” before her death. But she was not well enough to have any further treatment herself and she had no means of knowing what other information was available. She had not been given a form about posthumous use of her frozen eggs. It was unclear why the Committee thought A needed to know about the risks to her mother as that would be a matter for her mother after A’s death. Nor was it clear why A could not have simply trusted her mother to make the best decision for her on legal matters. Moreover, there was no basis for the Committee to doubt the conversation A had had with her mother, quoted above.

If there had been a failure to provide information, thus rendering A’s consent ineffective in the eyes of the Committee, the Committee should have gone on to ask if the information was likely to have changed A’s mind.

The HFEA maintained, inter alia, that A had never gave written consent to either the use of her eggs by someone else or their use to create embryos. Export to the USA or anywhere else was not permitted under the General Directions that the Committee could make under the statute.  There was no clear evidence that A wanted her mother to carry her child after her death. They were only eggs, and they required fertilisation, and therefore the Committee had to ask if she would have agreed to the particular method chosen by her parents. A had had a long period in which to make these decisions but she had failed to do so. In the light of this, the Committee had been entitled to find that it was not sufficiently clear that A wanted her mother to carry her own child in the event of death.

The Court’s Conclusion

Arden LJ was not impressed by the way in which the Committee had simply “waved aside” the conversation A had had with her mother about her eggs after she realised she was dying.

 Contrary to [HFEA’s counsel] Ms Callaghan’s submissions, that statement clearly contemplated the creation of an embryo. Contrary to Ms Callaghan’s further submission that we should accept the Committee’s assessment of the evidence, this misstatement of the evidence discloses error in public law.

The Committee’s statement that there was no evidence on the question of A’s consent was “a most surprising conclusion” which flew in the face of A’s mother’s evidence, none of which was rejected. The Court of Appeal also found it “revealing” that the HFEA had chosen to press a case that A did not consent to the use of anonymous donor sperm.

It would be totally unrealistic to suppose that she was not aware that there would have to be a donor. Moreover, there is no suggestion that she had a preference for any donor known to her. The donor would have to be someone not known to her.

The decision taken by the Committee was flawed on three levels, namely:
i) misstatements of material evidence;
ii) a failure to give reasons why the Committee considered A had to have certain information before she could give effective consent to the appellants’ proposed actions

iii) a failure to decide what relevant information the HFE Act required A to have.

The Court of Appeal’s ruling means that the HFEA will have to reconsider whether to allow the eggs to be sent to the US fertility clinic, taking into account the factors (such as the all-important reported conversation between A and M) that Arden LJ pointed out were not considered before.
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