Embryos & “expired” consent: fettered rights to reproductive freedom?
3 March 2026
By Georgina Pein
In a recent judgment, the High Court in AAA v Human Fertilisation and Embryology Authority [2026] EWHC 317 (Fam) (Morgan J) heard 15 applications from fertility clinic patients for declaratory relief. Those patients (the “Applicants”) had embryos or gametes which were stored at various fertility clinics. They sought declarations that it was lawful for those gametes or embryos to continue to be stored and used in circumstances where their written consent to storage had expired and had not been renewed (within the timeframes provided by legislation for renewal of consent).
Morgan J found that there were relevant administrative failures and oversights on behalf of the fertility clinics, and relief was granted in relation to 14 out of the 15 applications.
The Human Fertilisation and Embryology Authority (“HFEA”), the fertility clinics, and the Secretary of State for Health and Social Care (“SSHSC”) were Interested Parties to the applications.
Factual and Procedural Background
The chronology is as follows (at [8]):
- In all cases, patients’ consent to store embryos and/or gametes had expired. This meant that the relevant fertility clinics would be required by 31 December 2024 to destroy the embryos and gametes which were being stored (notwithstanding the wishes of the patients).
- On 23 December 2024, an emergency application was made to Cusworth J in Christmas High Court vacation for injunctive relief.
- By Cusworth J’s order, an interim declaration as to lawful storage was made.
- Following that order, and until the point of judgment, that position has been preserved. None of the embryos or gametes which were the subject of the applications had been destroyed, but none of them could be used.
Legal Framework
The legislative framework (set out at [9] to [48] of the judgment) is lengthy. What follows below is necessarily a high-level summary.
The regulatory effect of the regulatory framework (the Human Fertilisation and Embryology Act 1990 (“HFEA 1990”), as amended by the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) and the Health and Care Act 2022 (“HCA 2022”)) was that: (i) a person’s gametes must not be kept in storage unless there is an effective consent to that person to their storage and they are stored in accordance with their consent; and (ii) an embryo must not be kept in storage unless there is an effective consent by each relevant person in relation to the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents (at [14]).
Under the HCA 2022, there is a 55-year time limit for storage. Consent requires renewal every ten years. Renewal of consent is provided for in paragraphs 11A-11D of Schedule 3 to the HFEA 1990. If renewal of consent does not take place before the end of the renewal period, there is provision for the removal and disposal of the gamete or embryo. There is also an obligation on clinics to send statutory notices to patients before the start of the renewal period.
There will be deemed withdrawal of the patient’s consent on a conditional basis: namely, if, at the end of the renewal period, the clinic has written to the patient and asked them to provide consent to continued storage, and the patient has not responded (paragraphs 11A and 11C of Schedule 3 to the HFEA 1990). Significantly, the legislative framework is silent on what may be done in the event the clinic fails to comply with its obligations. The legislation is also silent on when removal and destruction must occur in relation to gametes. In relation to embryos, lawful storage continues for six months after the renewal period (referred to as “cooling off” periods).
The Administrative Errors
In all 15 of the applications before the High Court, written consent was not lawfully renewed before the end of the relevant renewal periods. It was submitted by the Applicants that this was due to mistake, “whether that was error by the clinic, or a combination of clinic and patient errors” [49].
Article 8 of the European Convention
There was no dispute between any of the parties that the Applicants’ Article 8 (right to respect for private and family life) rights were engaged. The Strasbourg jurisprudence has previously interpreted the notion of private life as including the right to become a parent in the genetic sense: Evans v United Kingdom (2008) 43 EHRR 21 at [72].
A core part of the legal analysis was “whether, and if so how, consent to continued storage and future use of gametes and embryos may be given and renewed within the relevant legislative scheme and the permissibility or otherwise outside that scheme considered by the court under s3(1) HRA 1998 as a route to relief” [4]. When it came to section 3 HRA 1998, the court plainly cannot adopt a meaning of the statute which is “inconsistent with the fundamental feature of legislation” (per Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [26]-[33]).
In the Applicants’ submissions, the situation before the Court required flexibility to afford justice; consent could be “read in” from the evidence and surrounding circumstances [50]. It was argued that the reference to written consent in the statutory framework “is an evidential rule with the obvious benefits of certainty but it is not inviolable where the circumstances may require the Court to intervene” (at [52], referencing G v HFEA [2024] EWHC 2453 (Fam) at [75]-[76]). The relief sought was not inconsistent with the fundamental feature of the legislation. Although the legislation had to provide clarity and certainty, the underlying thrust of the legislation was to protect patient autonomy and give effect to informed consent [57].
The HFEA did not dispute the applications. It argued that although the jurisprudence had focused on disagreement of consent between individuals, as well as posthumous consent, in this case the relevant people were “before the court” and there was “living consent” [66]. Significantly, both HFEA and the SSHSC contended that the Court should not be drawn into making decisions “by categories of error” (i.e. who was responsible for the failure of renewed consent).
In the SSHSC’s submissions: i) the requirements in the statute were intentionally strict and had remained that way over a period of time; and ii) individualised determination of each case was essential, with any broad and untailored declarations containing a very real risk that clinics could never be sure in future of what constitutes reasonable or sufficient efforts to secure consent ([69], [75]-[76]). For the SSHSC, clarity and avoiding arbitrariness was paramount. The possibility of mistakes was, to a limited degree, already factored into the legislation in a proportionate way through the relevant “cooling off” periods [79]. There was, however, no principled opposition to the declaratory relief being sought (should the Court be minded to grant it) in cases where the clinic had failed to contact the patients so as to arrange renewal. As to the applications where there was no clinic failure, it was not necessarily accepted that there was a disadvantage caused to the patients [86].
Conclusions
At the outset of her judgment, Morgan J noted the “exquisitely painful experience” of the patients finding themselves before the Court, “with the possibility remaining to them of genetic parenthood but knowing that the strict provisions of legislation may mean that possibility is illusory” [5].
In the absence of a solution found within the scheme, it was found that the “reading in” of an “implied opportunity to renew consent is required”, in orderto prevent a breach of Article 8 [96]. The Court’s decision focused on the inclusion of the word “if” contained in Schedule 3 to the HFEA 1990. It was “surely consent that is important, not consent by an immutable date” [92]. Morgan J found that the legislative protection referred to by the SSHSC (regarding the “cooling off” periods for embryos) was not “baked into” the scheme, but rather “of necessity falls outside the legislative scheme”. Quite simply, relief in the event of late consent renewal would need to be sought outside the statutory scheme [94]. At the crux of the matter was a denial of a “fair and reasonable opportunity” for patients during the renewal period to renew their consent, and there was nothing in the legislation which addressed the renewal of consent which arose in the circumstances of these cases.
Comment
In applying the law to the individual Applicants’ facts, Morgan J’s four-stage proportionality assessment was, interestingly, comparatively brief, and the Court’s conclusion that a “fair and reasonable opportunity” had not been afforded in respect of Applicants such as RR and SS (who were, in fact, notified about the expiry period, but did not on the whole receive the service they could have expected from the clinic both before and after their consent was obtained) is somewhat surprising (at [171] onwards) – see [181]. Aside from the broad judicial discretion exercised in this case, it is unclear what properly constitutes “fair and reasonable opportunity”. This might create future problems for fertility clinics.
As to the one application which was rejected, that reason appeared to be straightforward: there had been a mistake in the fertility clinic recording the initial consent as consent (when, in actual fact, the relevant box had not been ticked), and so there was never any consent to “renew” in the first instance [231].
Georgina Pein is a pupil barrister at 1 Crown Office Row.
Jeremy Hyam KC and Emma-Louise Fenelon, both of 1 Crown Office Row, acted for the Secretary of State for Health and Social Care. They were not involved in the writing of this post.
