Health – Assisted reproduction – Consent to treatment – EC law

L v (1) Human Fertilisation and Embryology Authority (2) Secretary of State for Health: Fam Div (Mr Justice Charles): 3 October 2008

The claimant (L) sought declarations that the sperm of her deceased husband (H) could lawfully continue to be stored and then used in the UK or stored for export and use abroad.

Prior to his death, H and L had wished to have a second child. H later died unexpectedly without having discussed with L what, if any, action should be taken in the event of his death. Following H’s death, a declaration was made that the hospital could lawfully retrieve sperm from H. The sperm was retrieved and transferred to a clinic. After learning of the declaration, the Human Fertilisation and Embryology Authority indicated that it was for the court to determine whether the relevant statutory provisions were satisfied. The authority was due to consider an application to export H’s sperm to treat L, but that application was adjourned pending the instant decision. L submitted that an absolute bar or ‘bright line’, based on effective consent under the Human Fertilisation and Embryology Act 1990, precluding storage and use of H’s sperm, was unsustainable and incompatible with article 8 of the European Convention on Human Rights 1950. She further argued that requiring effective consent to storage pending a decision on export or an interim decision on storage was an unjustified interference with her rights under the EC Treaty.

Held: (1) At the heart of the competition between the rights of those involved was the issue of autonomy and choice. The need for effective consent to storage in the UK, for subsequent use in the UK, was not incompatible with L’s convention rights, Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727, [2005] Fam 1 and Evans v United Kingdom (6339/05) [2007] 1 FLR 1990 ECHR (Grand Chamber) applied.

(2) The discretionary power vested in section 24(4) to permit export meant that where it was envisaged that the sperm would be used abroad, the act was not in absolute or ‘bright line’ terms. Section 24(4) enabled the authority, before and after retrieval, to grant a special direction authorising storage, or further storage, pending a decision by it on export. Absent a direction, storage without effective consent was not permitted and was a criminal offence, R v Human Fertilisation and Embryology Authority Ex p Blood [1999] Fam 151 CA (Civ Div) applied. Ignoring the possibility of the court granting interim relief in judicial review proceedings relating to a refusal by the authority to exercise such power, the court could not, leaving aside the treaty rights, fill any gap pending a decision by the authority because it could not authorise the commission of a criminal offence or give consent on behalf of H to modify conditions of the relevant licences. Parliament had given the authority a discretion which meant that the act did not infringe the relevant treaty rights. The exercise of that discretion was governed by public law principles; it was when a decision of the authority was challenged that issues in respect of the treaty arose, Blood applied. The bases for the declarations sought that continued storage was lawful, did not exist and the issue of whether H’s sperm could be exported for use in treatment would be decided by the authority. That was subject to the understanding that, pending its decision, H’s sperm would continue to be stored and would be available for export if that was authorised by special direction.

(3) In relation to the proposed export, an absolute bar by reference to withdrawal of consent was found to be within Parliament’s margin of appreciation. It was arguable that a limited exception to that absolute approach would also be within it. However, it was necessary to further consider whether other issues might lead to such anomalous or harsh results that the margin of appreciation was inapplicable.

(4) Whether the court had the power to make a declaration on the legality of the retrieval was arguably a relevant factor for the authority to take into account. It was not possible to lawfully remove or authorise the removal of gametes from a dead person who had not given effective advance consent.

Judgment for defendant.

Nicholas O’Brien (instructed by Josiah-Lake) for the claimant; Diana Rose QC, Claire Weir (instructed by Morgan Cole) for the first defendant; Marie Demetriou (instructed by in-house solicitor) for the second defendant.