Frozen sperm, posthumous conception and Article 8 ECHR

Beth Warren and Warren Brewer met in 2004. In 2005 Warren Brewer was diagnosed with a brain tumour. Aware that the treatment might render him sterile, before having radiotherapy he had his sperm frozen and signed forms saying that his wife could use it if he died. The couple became engaged to be married in October 2010 and in December 2011 were married in the hospice shortly before Mr Brewer’s death. It was their mutual wish to become parents; and in 2008 Mr Brewer had formally named Mrs Warren as “his partner” to enable her to use his sperm after his death and to allow him to be named on the birth certificate of any child created with his sperm.

In Warren v Care Fertility (Northampton) Ltd & Anor [2014] EWHC 602 (Fam) Mrs Warren challenged the storage time-limit of April 2015 for her late husband’s sperm that had been imposed by the Human Fertilisation and Embryology Authority and sought a declaration that it would be lawful for it to be stored beyond 18 April 2015 for a period of up to 55 years so that she could use it in order to conceive if she so wished.

The Human Fertilisation and Embryology Act 1990 as amended provides for a deceased person’s sperm to be used by his partner to create an embryo. The initial maximum storage period was established as 10 years and the amending Regulations made in 2009 enabled an extension of that period, subject to certain requirements. Despite his wishes and intentions and despite having completed various consent forms, Mr Brewer did not provide either the necessary written consent under the Regulations or the requisite medical certificate because the respondent clinic failed both to tell him about the requirements of the Regulations and to obtain the necessary long-term consent The time-limit meant that Mrs Warren had just over a year to conceive before it expired; and she argued that a forced deadline was not a proper reason to have a child and that she needed time to get over her grief and rebuild her life before choosing to become pregnant.

In the Family Division Mrs Justice Hogg found for the claimant and ruled that Mr Brewer’s sperm could now be stored for a period of 55 years. She came to the following conclusions from the evidence provided by Mrs Warren and the documents produced by CARE:

  • Mrs Warren and Mr Brewer were a devoted couple who  wanted to be lifelong companions and raise their own children;
  • Mr Brewer was made aware that radiotherapy was likely to render him sterile;
  • even before the relationship developed sufficiently for him to declare Mrs Warren his ‘named partner’, Mr Brewer wanted to preserve his sperm to enable him to become a father in due course;
  • when in 2008 their relationship had developed, Mr Brewer agreed that Mrs Warren should have the opportunity to have his children if she so wished and there was no time limit to this in his mind;
  • over time his wish was conveyed to his parents and his consultant oncologist;
  • there was no evidence that he was given any information about the law and regulatory requirements on the length of time sperm could be stored, either in April 2005 or in October 2009 when the 2009 Regulations came into force;
  • the letters from CARE Fertility referred to “a further 2 years” and largely related to their fees: they did not clarify his rights or options as required by the Code of Practice and referred to in the HFEA LGS forms;
  • CARE failed to tell Mr Brewer about the options available to him and what he was required to do and failed to give him any option other than to consent for a specified number of years less than 10 years.
  • when he signed the various consent forms, particularly those after 1 October 2009, his rights and options and the regulatory requirements were not explained to him  [para 76].

Crucially, Hogg J was

“… satisfied from the written evidence produced on behalf of Mrs Warren and her own oral evidence that had he have known fully of his options and the requirements Mr Brewer would have consented to his sperm being stored for a period in excess of 10 years, up to a maximum of 55 years, and would have obtained the necessary medical opinion required under the 2009 Regulations [and that] it was his wish that Mrs Warren should have the opportunity to have the use of his sperm after his death in order to have his child or children if she so wanted, and he would have done everything required of him to achieve this” [para 76].

Hogg J accepted that Article 8 ECHR (private and family life) was engaged:

“Mrs Warren relies on Article 8 in that she has the right to decide to become a parent by her deceased husband, which would accord with his wishes, and the written consent he gave. He never withdrew his consents either for storage, use by her or naming him.

I accept the proposition that she has this right and that this right should be respected by the state [paras 119 &120]”.

She concluded that it was “right and proper, and proportionate” for her to make the declaration sought. The HFEA was given leave to appeal but, after considering its position, decided not to pursue the case further.

Comment

In a long analysis of the judgment on the UK Human Rights Blog, Jessica Elliott suggests that

“The new ‘Article-8 compliant’ reading given to Regulation 7(3)(b) by Hogg J is perfectly comprehensible in principle. Nonetheless, there is a pervading sense in the judgment that the ‘remedy’ on the whole does not match the mischief identified”.

The problem was that

“[a]s Hogg J was at pains to emphasise, it is really the Clinic (not the Regulations) that has failed Mrs Warren and caused the ‘great and conspicuous unfairness’ complained of (at [100])”.

She goes on to make the point that the problem could not be cured by a private action against Care Fertility. Nor could the fact that Care Fertility had made a mess of things in failing to make the position clear to Mr Brewer mean that the Act and the Regulations should be held not apply to the situation. She then analyses the options open to Hogg J and concludes that

“[w]hatever the analysis adopted, it should not have been one which imported quasi-equitable considerations into the law of consent which effectively decided the issue because Mr Brewer had done all that it was in his power to do”.

She puts her finger on a serious problem: once Hogg J had decided, quite properly, that Article 8 was engaged and that to fail to provide Mrs Warren with a remedy would be manifestly unjust, she was faced with enormous difficulties in justifying her position. Elliott concludes that Hogg J avoided using section 3 HRA 1998 “to cause statute to accommodate the failings of third parties” but she clearly has residual reservations.

In my view (for what it’s worth), Warren was an extremely difficult case in which the just result was achieved by some very painstaking analysis. However, the phrase “quasi-equitable considerations” led me to a few moments of idle speculation on how the case might have gone had it been heard in Scotland. Mr Brewer (and by extension Mrs Warren) were the victims of incompetence on the part of Care Fertility. The Act and the Regulations were presumably drafted and enacted on the assumption that clinics would be punctilious in observing the correct protocols in matters of consent: Care Fertility was not. Might it have been an appropriate set of circumstances for a successful petition to the nobile officium of the Court of Session?

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