Human Fertilisation and Embryology Act can be “read down” to accord with Convention family rights
19 July 2022
This poignant case tells a sad story, but an instructive one in terms of human rights and the ability of courts to interpret statutes in accordance with these rights under Section 3 of the Human Rights Act 1998.
The judge’s role in these difficult private cases is subject to the “stern test” laid down by Sir James Munby in Samantha Jeffries v BMI Healthcare Limited and others  EWHC 2493 (Fam) . Respect for a statute’s obvious does not entail
that the judge must approach a case such as this bereft of humanity, empathy, compassion and sympathy. What it does mean is that the judge cannot allow his judgment to be swayed, or his decision to be distorted, by those very human emotions.
Background facts and law
The statute in question in that case and this was the Human Fertilisation and Embryology Act 1990, as amended by secondary legislation and the Human Fertilisation and Embryology Act 2008. More on that later. Here, the applicant sought a declaration that it was lawful for him to use an embryo created using his sperm and the eggs of his late wife in treatment with a surrogate. The embryo was created in 2018 when the applicant and his wife (C) were undergoing fertility treatment to fulfil their wish to have children of their own. The embryo is currently stored at the Centre for Reproductive and Genetic Health.
The applicant and his wife had undergone several unsuccessful cycles of IVF, the latter being private. They had remortgaged their house to pay for the treatment. A positive pregnancy with twin girls was confirmed in November 2018. C developed complications in her pregnancy at 18 weeks, which resulted in a uterine rupture, and she died on 25 February 2019. There was one remaining embryo which the applicant wished to use with a surrogate, to fulfil their joint wish for this to take place in such circumstances. He accepted there was no written consent by C for that to take place but said that they had not been given sufficient information or opportunity to give that written consent. It was that remaining embryo that was the subject of this application.
During their fertility treatment, the applicant and C completed the necessary forms for the Human Fertilisation and Embryology forms. C completed a form entitled “Women’s consent to treatment and storage (IVF and ICSI)” (WT form), and the applicant completed a form “Men’s consent to treatment and storage (IVF and ICSI)” (MT form).
The WT form used at that time did not provide any opportunity for a woman to consent to a partner-created embryo being used for her partner’s treatment if she died. The MT form signed by the applicant recorded his consent to their partner-created embryos being used in W’s treatment in the event of his death.
The WT form stated that “If you wish your eggs or embryos to be used in someone else’s treatment if you die” you should complete a “Women’s consent to the use and storage of eggs or embryos for surrogacy” (WSG) form. The applicant was sure that if C had been offered that particular form she would have completed it, thus providing her consent to the posthumous use of their embryo in treatment with a surrogate.
Three of the four WT forms which C completed over the course of her IVF treatment recorded her consent to the storage and use of embryos for training purposes in the event of her death or incapacity. In the final WT form, dated 21 May 2018, C did not consent to embryos created using her eggs being used for training purposes in the event of her death or incapacity. This is because, according to the applicant, he and his wife had only one normal embryo remaining in storage and it was their intention that this embryo would be used with a surrogate in the event that IVF treatment was unsuccessful. This is what he said to the court:
I do not recall that we had any negative emotions towards parenthood in the event of using a surrogate, donated embryos or adopting a child. Our emotional journey was going from the helplessness of the infertility compounded by the feeling of unjustness given all the other medical issues already faced. We eventually got to the position of accepting that having given IVF our best shot, this would be the last time and the final embryo would be saved for surrogacy.
The applicant told the court that in every MT form that he had completed he consented to C using the embryos in the event of his death, and that he was certain that
had Fern been presented with the form required to give her consent to posthumous use of embryos, she would have consented.’ Later he says ‘Fern and I did not make a specific request for an additional consent form to permit the use of our embryo in surrogacy after Fern’s death because we were caught up in the process of trying to create a life and had no reason to consider the risks or implications of Fern’s death. I note as well that the additional form was never provided to us, and being expected to ask for it is unreasonable in my opinion. This is particularly the case when a separate form was not required to enable me to provide consent to posthumous use of my embryos.
Arguments before the Court
The Human Fertilisation and Embryology Authority opposed the declaration on the basis that there had been no valid written consent by C at the relevant time to use the remaining embryo in the way sought by the declaration in the event of her death. The statutory scheme required such consent to be in writing and the HFEA submitted that C had had sufficient information and opportunity to give that written consent.
The HFEA submitted that to dispense with written consent would go against the purpose of the 1990 Act; in their words, it would “stretch the legislative language beyond its natural and intended meaning and go against the grain of the statutory scheme”. This, they said, went beyond the powers of the court and was a matter for Parliament. Theis J dismissed this argument. The limits on the court’s power to construe a statutory provision pursuant to s3 of the Human Rights Act were set out by Lord Nicholls in Ghaidan v Godin-Mendoza . The task for the court is to identify the fundamental feature or principle of the legislative scheme; providing the integrity of that is kept the court’s interpretation under s3 may change the unambiguous meaning of the words in the legislation.
Theis J granted the application.
Reasoning behind the decision
The donation, storage and use of gametes and embryos is regulated by the Human Fertilisation and Embryology Act 1990, as amended by secondary legislation and the Human Fertilisation and Embryology Act 2008. While the issue of consent is the cornerstone of the statutory scheme, and the statutory scheme required such consent to be in writing, that should not be considered in a vacuum.
Schedule 3 of the 1990 Act provides that there should be a suitable opportunity to receive proper counselling and be provided with “such relevant information as is proper”. It requires consent to the use of an embryo created in vitro in treatment to be in writing and signed, that consent to be provided by each person whose gametes are used to bring about the creation of the embryo, and specifying one or more of the purposes mentioned in in Schedule 3. However, none of the purposes listed in paragraph 2(1) expressly deals with the situation where a partner-created embryo was used in treatment with a surrogate.
The WT form gives some prompts about what a woman should do about providing consent to posthumous use by her partner of a partner-created embryo, but they are “far from clear”. As a result, the applicant and his wife were not given sufficient opportunity to give the consent in writing.
Discussions between the applicant and C demonstrated that she would have wanted the applicant to have their children, the twin girls she was pregnant with, in the event of her death. The fact that they had not discussed specifically the posthumous use of the remaining embryo in the event of C’s death was because it was not raised by the clinic or obvious from the forms she was asked to sign.
Theis J inferred from all the available evidence that C would have consented to the applicant being able to use their partner-created embryo in treatment with a surrogate in the event of her death. That was in the context where she had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic.
The judge reflected that it was important to consider the role and purpose of consent in the statutory scheme, which is to ensure that gametes and embryos are used in accordance with the relevant person’s wishes. The reference to written consent is an evidential rule with the obvious benefits of certainty but it was not “inviolable where the circumstances might require the court to intervene” (para 101).
The instant case was one such case. There had been an interference with the applicant’s right under Article 8 of the Convention to respect for the decision to become a genetic parent. The interference with that right was not proportionate on the facts of the case. While the requirement for writing pursued a legitimate aim, in the circumstances of this particular case, there had been no opportunity for C to provide that consent in writing. The interference with the applicant’s Article 8 right would be significant, final and lifelong. There were no weighty countervailing factors to justify the significant interference, there was no conflict of individuals’ rights and permitting the application would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent.
Apropos of the HFEA’s arguments, the judge concluded that she was not crossing the ‘bright line’ between what the court has jurisdiction to do and what remains a matter for Parliament. The applicant’s Article 8 right to respect for the decision to become a parent in the genetic sense had been interfered with. The interference with that right was not proportionate on the facts of this case. Whilst the requirement for writing undoubtedly pursued a legitimate aim, in the circumstances of this case, where, on the findings the court has made, there was a lack of opportunity to C to provide that consent in writing, in circumstances where the judge thought she would have given that consent, the interference with the applicant’s Article 8 right would be “significant, final and lifelong.” There were no weighty countervailing factors to justify the significant interference, there was no conflict of individuals’ rights and permitting the application would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent.
This is a case very much on its own particular facts. […]it will not open any floodgates. Parliament intended to enable a deceased person whose gametes had been used to create an embryo with their partner for that partner to be the named person to use that embryo after their death, provided it was the deceased’s wish recorded in writing. In my judgment the court can and should read down the requirement in Schedule 3 to dispense with the requirement for written and signed consent in this limited situation where a person has been denied a fair and reasonable opportunity in their lifetime to provide consent for the posthumous use of their embryos and there is evidence that the court concludes, directly and/or by inference, that if that opportunity had been given, that consent by that person would have been provided in writing. This does not, in these very limited circumstances, go against the grain of the legislation and ensures Mr Jennings’ Convention rights are respected.