Background

In EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam), EF and his wife AB had undergone fertility treatment in 2017 at a clinic licensed by the Human Fertilisation and Embryology Authority (HFEA), during which an embryo had been created which remains stored by the clinic. Tragically, AB died unexpectedly in childbirth, and she had not signed the necessary consent form for the use of the embryo.

The HFEA refused EF permission to use the embryo with a surrogate, and he sought a declaration that it would be lawful for him to do so, based on the contention that the HFEA’s refusal was an interference with his Article 8 rights under the ECHR, alone and in light of Article 9, and with those rights when considered in the context of Article 14:  that “paragraph 1 of Schedule 3 to the Human Fertilisation and Embryology 1990 Act should be construed pursuant to s.3 Human Rights Act 1998 to dispense with the need for written and signed consent” [1-4].

EF and AB were both active members of a religion (unspecified, presumably to help protect their anonymity), one of whose core beliefs was the sanctity of life and the divine purpose of all life-forms. A priest from their religion had filed a detailed statement describing the couples’ deep faith, particularly in the context of conceiving and raising a family, as evidenced by AB’s reaction when she had an earlier miscarriage. AB had believed that every living being had a soul and in their religion’s belief in reincarnation, and considered that the divine soul entered the embryo at the point of conception [8].

The arguments

It was submitted on behalf of EF that the decision preventing him from using the remaining embryo in treatment with a surrogate following AB’s death was a significant interference with his Article 8 rights and that the court should consider Article 8 as interpreted in the light of Article 9 and in the context of Article 14, and that the statutory requirement that the necessary consent be provided in writing was a significant interference with his Article 8 rights [43 & 44]. Further, 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 and, “if unused, the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs” [45].

On behalf of the HFEA, it was submitted that the declaration sought should not be granted because:

• the 1990 Act provided “a clear and unambiguous framework for the use of embryos, which requires informed consent to be given in writing and to be signed”;
• it was common ground that AB had not given such consent, and the evidence filed demonstrated AB had had sufficient opportunity to provide effective consent;
• the Act did not permit the exercise of any discretion in respect of the requirement for “effective consent” and “cannot be read down to remove the requirement for signed written consent without crossing the boundary from interpretation to amendment”, and
• any interference with EF’s Article 8 rights, either alone or together with Article 9 and/or 14, was necessary and proportionate to the underlying legislative objectives: “The fact that the strict application of its requirements may result in individual hard cases does not make it disproportionate” [59].

The judgment

Theis J was satisfied that the appropriate inference to draw on the evidence was that AB had consented to EF being able to use their partner-created embryo in treatment with a surrogate in the event of her death and would have recorded this in writing had she been given the opportunity to do so. She was equally satisfied that:

“AB was not given the opportunity to consent to EF being able to use their partner-created embryo in treatment with a surrogate in the event of her death due to an omission in the HFEA scheme” [87].

AB had not been provided with a “Women’s consent to the use and storage of eggs or embryos for surrogacy” (WSG) form or a “Your consent to donating embryos” (ED) form, “or clearly told about the need to complete them in order to evidence her consent to the posthumous use of her embryos by EF”. Further:

“… the HFEA relevant patient information leaflet at the time under the section entitled ‘what happens if one of us dies’ makes no reference to surrogacy or the posthumous use of a jointly created embryo by the man” [88].

The important question before the court was whether, in the circumstances, the interference with EF’s Article 8 rights was disproportionate [89]. In the circumstances, Theis J was satisfied that Sch 3 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 wishes of gamete providers should be paramount. It does not dispense with the requirement of consent; it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers’ wishes, and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament” [95].

It was not necessary to go on to consider EF’s rights under Articles 9 and 14 [95].

Rosalind English has a much longer piece on the UK Human Rights Blog: Father allowed to proceed with embryo surrogate treatment after death of mother: Court of Protection.