Removal of gametes from brain dead man would breach his rights to privacy: Court of Protection

24 November 2022 by Rosalind English

The 22 year old patient in this case, X, was unconscious in intensive care during the course of this hearing, following a serious stroke. There was virtually no prospect that he would recover. This urgent application by X’s parents, out of hours, before Poole J was for a declaration that it would be lawful for a doctor to retrieve X’s sperm for storage after his death. The applicants also sought an order that X’s father V could sign the relevant consents under the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). The applicants did not seek any orders in respect of the use of X’s sperm once collected and stored. That was for another day.

The Trust took a neutral position on whether the declaration and order sought were in X’s best interests.

V told the court that his son had for many years spoken about wanting a child of his own. At the time of his stroke, he had a girlfriend, who at the time of this application had expressed a desire to carry X’s child. In the light of the urgency of this application, V sought a proportionate order, namely that his son’s sperm be extracted from him until such time as the court would be able to deal with this matter.

The judge noted that there was no advance decision from X nor any evidence as to X’s views as they might have been relevant to a decision to have his sperm collected while he was unconscious and stored after after his death. The HFEA pointed to the court’s decision in in L v HFEA  [2008] EWHC 2149 (Fam), in which Macur J had heard and granted an out of hours application for a declaration that it would be lawful to retrieve sperm from a recently deceased man.

However, at the full hearing, Charles J concluded that he was not satisfied that it was possible to lawfully remove, or authorise the removal of, gametes from a dead person (who has not given an effective advanced consent to this).

The HFEA also referred to the judgment of Theis J in Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) [2022] in which at [104] she concluded,

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.

But these cases only referred to the use of gametes from a deceased person. They did not concern the application of the Mental Capacity Act 2005 in relation to the collection and storage of gametes from a living person without capacity.

The HFEA also reminded the Court that the provisions of the Human Tissue Act 2004 which allow next of kin to provide consent to the harvesting of other body tissues do not apply to gametes.

In the case of Y v A Healthcare Trust  [2018] EWCOP 18, another urgent decision involving a dying man, Knowles J allowed an application similar to the instant application, although in the Y v A case the application was brought by the life partner of a dying man, not his parents, after the couple had sought fertility treatment and had signed the relevant consent forms under the 1990 Act. But in this case, Poole J had no evidence that X and his girlfriend had been in the process of trying to conceive nor that they had tried to in the past.

X may have wanted one day to have children, but that is not the same as wishing or his sper to be collected and stored when unconscious and dying… Unlike in Y v A Healthcare Trust, there is no direct evidence that X ever contemplated the issue. Nor do I have any evidence as to his values and beliefs from which I could infer what his decision would have been. I cannot infer from the fact that he wanted one day to be a father that he would have wanted his sperm collecting and storing with the potential that it could be used for the conception and birth of a child he would never know.

The judge noted that he could not allow the urgency of the application and the tragedy of the circumstances to dictate the decision of this court. If he did declare in this case that it was lawful to collect and store X’s sperm without any evidence that that is what he would have chosen for himself, then it would follow that the same declarations might be made in many other cases where parents or other relatives wanted their loved one’s gametes to be collected and stored with a view to decisions about their use being made at a later stage. Knowles J did not want to create a precedent that undermined the regulatory provisions within the 1990 Act which require actual consent to collection and storage of gametes.

Furthermore, even if there were no harm in allowing the sperm to be collected and stored, the process of collection from an unconscious individual would be an invasion of X’s privacy under Article 8. Weighing all the relevant matters in the balance the judge concluded that it would not be in X’s best interests to make the declarations sought.

The declarations if made would lead to a significant interference with his Article 8 rights and I am not persuaded that the interference would be necessary or proportionate.

Application dismissed.

Comment

It is sad that the considerations of privacy of a brain dead man outweighed the consolation that the collection and storage of his gametes would afford to his bereaved family. Something that would have caused no harm, and brought such relief, might have been given more weight than the notional enjoyment of rights – by an individual who is deceased – under the Convention.