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

24 November 2022 by

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.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editors: Darragh Coffey
Jasper Gold
Editorial Team: Rosalind English
Angus McCullough KC
David Hart KC
Martin Downs
Jim Duffy
Jonathan Metzer

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: