Father allowed to proceed with embryo surrogate treatment after death of mother: Court of Protection
24 November 2024
EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam)
This was an application by a father for a declaration that it should be lawful for him to use an embryo created using his sperm and his late wife’s eggs in treatment with a surrogate. The Human Fertilisation and Embryology Authority opposed the application, on the basis that there was insufficient consent from his wife (AB).
The embryo was created in 2017 during the course of treatment being undertaken by EF and AB at a clinic licensed by the HFEA and remains stored by them. EF’s wife died unexpectedly along with the couple’s youngest daughter. It was against that background that this application was made.
EF argued that the HFEA’s decision preventing him from using the remaining embryo amounted to an interference (i) with his Article 8 rights, alone and as interpreted in light of Article 9, and (ii) with those rights when considered in the context of Article 14, which prohibits discrimination in the treatment of men and women. Such interference with those rights, in the circumstances of this case, was disproportionate. Therefore, argued the applicant, the Court was required by s 3 HRA 1998 to read and give effect to primary and subordinate legislation in a way which is compatible with Convention Rights.
Both EF and his late wife were adherents of what the court called the “J religion”, whose central doctrine is the sanctity of life and the divine purpose of all life forms. They believed that the divine soul enters the embryo at point of conception.
They both came from large families and wished to replicate that pattern for themselves. AB suffered a miscarriage in 2008. They went on to have a daughter (X) and they wanted a sibling for her. After IVF treatment AB gave birth to Y. Y subsequently died of neonatal complications. AB and EF wished to use their remaining embryo retrieved in that IVF treatment to have another child.
During the course of their IVF AB consented to the use of her eggs to create embryos for treatment and for the storage of the couple’s jointly created embryos for a period of 10 years. She also consented to the use of her embryos in the event of her death. The problem was that there was no option in her consent form for the posthumous use of the embryos in treatment. The Consent Form for women simply does not provide any opportunity for a woman to consent to a partner-created embryo being used for her partner’s treatment if she dies.
EF argued that AB would have given that consent if she had been given the opportunity. He contended that the statutory requirement under the 1990 Act that the necessary consent should be provided in writing amounted to a significant interference with his Article 8 rights as it would:
(1) Deprive EF the opportunity of being the father in a genetic sense to a second child conceived from EF and AB’s jointly created embryo
(2) Deprive EF of giving his only child, X, a sibling from her mother. This was important for EF and AB due to their family background and heritage and to X. X would not have the opportunity of having a biological sibling, even though that is something AB would have wanted.
In the context of Article 9:
(1) EF would be deprived of being able to honour or fulfil AB’s religious wishes for the embryo to be used in accordance with her beliefs to give the life form a chance.
(2) If unused the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs.
Article 14 was engaged because there was a a difference in treatment between men and women who sign consent forms due to the difference in wording as women are deprived of the opportunity of consenting to the posthumous use by their male partners of their jointly created embryos. As a consequence, any male surviving partner is treated differently to any female surviving partner from a heterosexual relationship. The difference in treatment, which arises from omissions in the WT consent form, was not objectively justifiable.
It was argued on behalf of EF that the HFEA’s insistence on evidence in writing was a disproportionate interference for the following four reasons:
(i) The requirement for consent, rather than its form, is the lodestar to the legislative scheme and reflects the importance of personal autonomy.
(ii) The evidence was that AB would have wanted EF to be able to use the embryo this way on her death. Consequently the need for consent was not being undermined, rather it was being supported and would support the principle that the embryos being used in accordance with the wishes of both gamete providers which promotes the legislative objective.
(iii) The only reason why there was no consent in writing from AB is because she had not been given an opportunity to do so.
It was submitted that within the meaning of s 3 HRA 1998 it should be possible to read down Sch 3 HFEA 1990 to introduce an implied discretion to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Article 8 EHCR.
The HFEA countered that the requirement under the Human Fertilisation Act of specific written and signed consent permitted no exception. Any dilution or waiver in response to individual circumstances would undermine those objectives and would ‘require the HFEA or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy’ which’ would create new and even more intractable difficulties of arbitrariness and inconsistency’.
Theis J dismissed the HFEA’s arguments and upheld the claim.
Reasoning behind the court’s decision
The judge rejected the HFEA’s arguments. The fact that AB consented to the use of the embryo for training purposes in the event of her death or incapacity did not undermine in any way the inferences the court was able to draw regarding her consent. The consent to the use of the embryo for training purposes in the event of her death or incapacity was consistent with AB’s religious and spiritual beliefs and Theis J was satisfied that AB had not been given any other informed choice in the circumstances of this case.
The fact that AB had not been given the opportunity to consent to EF being able to use their partner created embryo on treatment with a surrogate in the event of her death was due to an omission in the HFEA scheme.
In her judgment, there was no dispute
“that the requirement that consent be in writing pursues a legitimate aim, the issue is whether that aim is sufficiently weighty to justify the very significant interference with EF’s Art 8 rights, making due allowance for the margin of appreciation. The requirement of consent is the cornerstone of the HFEA 1990 which reflects the importance of personal autonomy and giving effect to an individual’s wishes. The evidence establishes that AB would have wanted EF to be able to use the embryo with a surrogate in the event of her death, which seeks to support rather than undermine the importance of consent and personal autonomy which, in turn, promotes the fundamental objective of the legislative scheme. AB was unable to record her consent to this treatment as she was not given the opportunity to do so through no fault of her own. The insistence on written consent would, in the particular circumstances of this case defeat rather than promote this objective of the legislative scheme. In circumstances where the interference with EF’s Art 8 rights would be significant, final and lifelong there are no countervailing factors to justify the interference as, in the circumstances, permitting the application would not undermine a fundamental objective of the statutory scheme.’
Theis J was therefore satisfied that Schedule 3 of the HFEA 1990 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Article 8.
“This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wises of the gamete providers should be paramount”.
Comment
This is not an unusual story; the only difference between this and other more famous cases is that the applicant for a declaration was the father, not the mother. It is worth noting that the continuation of life using the gametes of deceased parents has been in the news lately. An in depth story by Financial Times journalist Jenny Kelly covered the collection of gametes from Israeli Defence Force soldiers killed in the war following Hamas’s attack last year: Inside Israel’s fight to make fathers of its dead soldiers. The extreme circumstances of that conflict serve to sharpen the dilemma of individual rights versus societal safeguards when it comes to advanced reproductive technology.
As Kelly reports,
“Since October 11, the IDF has been offering every family the possibility of post-mortem sperm retrieval at the time they break the news that a loved one has died.
…The dead man does not need to have provided prior written consent for his sperm to be taken — or used — after death. In a country where many are descendants of Holocaust survivors, family continuation is deemed paramount. It’s assumed that everyone wants to have kids.”
This account underlines the importance of family continuation in some religions. But it need not be in a doctrinal context that this issue arises. It will be remembered that in 1997, Diane Blood waged an extended legal battle for the right to use her deceased husband’s sperm after the HFEA authority refused her permission. The law stated that a man’s sperm could not be used after his death without his prior written consent. She eventually won the case, but only under EU law. The House of Lords ruled that the HFEA’s decision was correct that treatment in the United Kingdom could not take place without Mr Blood’s written consent. But Mrs Blood had the right to be treated in Belgium with her husband’s sperm. ([1997] 2 All ER 687)
Mrs Blood eventually succeeded under European law and she conceived two sons in Brussels. Her case is a demonstration of the inhumane complications created by over-regulation of reproductive technology, only overcome (then) by the overriding rules of free movement of goods under the EU Treaties. Now we no longer have that option, it may be time for a root and branch review of the stringent consent requirements imposed by the HFEA in this country.
