L v The Human Fertilisation & Embryology Authority and Another
| Jurisdiction | England & Wales |
| Judge | Charles J |
| Judgment Date | 03 October 2008 |
| Neutral Citation | [2008] EWHC 2149 (Fam) |
| Docket Number | Case No: FD07P01377 |
| Court | Family Division |
| Date | 03 October 2008 |
[2008] EWHC 2149 (Fam)
The Honourable Mr Justice Charles
Case No: FD07P01377
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Nicholas O'Brien (instructed by Josiah —Lake) for the Claimant
Dinah Rose QC and Claire Weir (instructed by Morgan Cole) for the 1 st Defendant
Marie Demetriou (instructed by DWP/DH Legal Services) for the 2 nd Defendant
Hearing dates: 29, 30 & 31 July 2008
Judgment Approved by the court (subject to editorial corrections)
Preamble
I heard this case in public but made an order that the individuals involved should not be referred to by name or otherwise identified. The Claimant wishes to avoid identification. The issues include ones that are intensely private for her and her child. In my view that privacy should be respected and she should not be identified in any discussion of this judgment absent further order of the court permitting it.
The hearing was in public and this judgment is a public document because the issues raise matters of public interest.
There are two cases that are particularly relevant, one decided before the introduction of the European Convention on Human Rights (the Convention) into English law (and without reference to it) R v HFEA ex parte Blood [1999] Fam 151, and Evans v Amicus Healthcare Ltd and ors [2005] Fam 1, Evans v United Kingdom (2006) 46 EHRR 34. I shall refer to these cases as the Blood case and the Evans case. As appears from the second reference the Evanscase went to the European Court of Human Rights, Grand Chamber.
The Blood case involved the retrieval, storage and export of gametes. The retrieval was carried out at a time when Mr Blood was in a coma. Following the decision of the Court of Appeal, in which it was held that the HFEA should reconsider its earlier refusal to do so, the HFEA gave permission for the export of the gametes. Mrs Blood now has a second child as a result of her insemination with those gametes abroad.
The Evans case involved a different situation. Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered IVF treatment prior to their removal. She and her partner signed the relevant forms which also indicated that in accordance with the Human Fertilisation and Embryology Act 1990 (the 1990 Act) either of them could withdraw consent at any time before the embryos were implanted. The couple attended a clinic and had treatment resulting in 6 embryos being stored. Later the couple's relationship ended and the man withdrew his consent to the embryos being implanted. This had the result that Ms Evans lost the chance of having a child to whom she would be genetically related. It was held that the embryos could not be implanted. The Grand Chamber was unanimous in concluding that there had been no violation of Article 2 and held by a majority (13 / 4) that there had been no violation of Article 8, or Article 14 taken in conjunction with Article 8.
The Evans case therefore involved a situation in which embryos had been created, the man had given and then withdrawn his consent. The central issue was whether his withdrawal of consent was decisive. It was held that it was.
Whereas the Blood case involved a situation in which the man did not have the capacity at the relevant time to give his consent to storage or use of his sperm and the result was that his sperm was retrieved, and stored in the UK and successfully used abroad after the death of Mr Blood.
A central issue in the Blood case was the exercise by the HFEA of a power conferred on it in connection with the export (and import) of gametes or embryos. That discretionary power enables the HFEA to grant a direction in an individual case permitting the export of sperm, and modifying, if appropriate, for the purposes of export the provisions of the 1990 Act that set in mandatory terms licence conditions (including the consent provisions). By contrast, the HFEA has no power under the 1990 Act to make any direction modifying those licence provisions for the purposes of storage of gametes in connection with their use in the UK.
This power also plays a central part in the issue in this case. In my view issues as to its width as a matter of statutory construction, and limits on its exercise by reference to the underlying purposes of the power and of the 1990 Act are relevant. There are distinctions between a power that cannot be, or never will be, exercised to achieve a certain end, and one that will only rarely, if ever, be so exercised.
Retrieval without, shortly thereafter, use or storage in appropriate conditions renders the retrieved sperm useless. So in many (if not all) cases involving export for the discretionary power to permit export and a change in licence conditions to have any practical effect the sperm must be preserved and stored.
Immediate use of retrieved sperm would, as I understand it, be outside the licensing regime of the 1990 Act. So the HFEA is not directly concerned with the lawfulness of retrieval.
In the Blood case the sperm had been preserved as a result of arrangements made in an unexplored legal situation where the Court of Appeal expressed the view that humanity dictated that the sperm was taken and preserved first and legal argument followed.
In this case the sperm has been taken and preserved as a result of interim relief granted by the Court, initially out of hours but later continued. This has resulted in the existence of gametes retrieved from a dead man which could be used and which in practice can be the subject of a discretionary decision of the HFEA permitting export, so long as they continue to be stored pending that decision.
To my mind a problem in this case arises from the fact that before me the parties have not addressed in any detail how that sperm is to be preserved pending that discretionary decision if the Claimant fails to obtain the declarations she seeks.
Introduction
The Claimant, L, seeks the chance to secure fertility services in the UK, the EU/EEA or elsewhere using her deceased husband's (H's) gametes. She wishes to have the chance of a full genetic sibling for her daughter by her late husband. To do this she needs:
(i) to preserve a sample of H's gametes; and if she cannot secure treatment here
(ii) to have lawful authority to have those gametes exported for storage and use in a clinic overseas.
She seeks declaratory relief in respect of the provisions of the 1990 Act in respect of storage for use in and use in the UK, and in respect of storage for export and use abroad.
L was born in 1965 and is now 42. She married H (who was 11 years younger than her) in 2005 and they had a child in August 2006.
On 26 June 2007 H died in hospital after he had had an appendectomy. His death was completely unexpected and very understandably L and her husband did not have relevant discussions as to what should happen if he died when in hospital. His death was inevitably a great shock to L and I accept that the steps that she took in its immediate aftermath were motivated by the wishes of herself and her husband to have another child, her wish to have another child who by blood would be a full sibling to her existing child and time to think about whether she should pursue that course. To do this, urgent steps had to be taken to retrieve and preserve H's gametes. To this end an out of hours application was made to Macur J for declaratory relief on 26 June 2007. The hospital was notified of that application. The first Defendant (the HFEA) was not notified.
Macur J granted the following relief:
“IT IS DECLARED THAT IT SHALL BE LAWFUL FOR
1. [The hospital] to retrieve sperm from the deceased [H] within 24 hours of his death provided that in so doing all due respect and dignity shall be accorded to, and that as little damage as possible is caused, to his body; provided that the procedure is to be carried out by a Consultant or such other medical professional or clinician that has experience of the relevant procedures involved and who will be able to do all that is necessary to ensure the future viability of the sperm retrieved. (The various procedures involved in the retrieval include surgical excision of the epididymis, irrigation or aspiration of the vas deferens, rectal probe electro-ejaculation and orchidectomy.)”
2. The sperm retrieved to be stored at [the Clinic or the Hospital] until further order of the court.
IT IS DIRECTED THAT
3. The said application and this order shall be served upon ————————the HFEA ———-—the Human Tissue Authority by 4 p.m. on 27 June 2007.
4. The application be listed for further directions before Macur J on 29th of June 2007, time estimate 30 minutes.”
The gametes were retrieved by the hospital on 27 June 2007 and were then transferred to the clinic where they are now stored (the Clinic).
On 29 June 2007 Macur J made a further order (which recites that she had read a letter from the solicitors acting for both the HFEA and the Human Tissue Authority) and contains the following provisions:
“ It is ordered that
1. The 2 nd declaration made on 26 June 2007 shall remain in force until further order.
2. The application shall be read listed for directions in October 2007 before Mrs Justice Macur, —————-
3. The Applicant shall, not later than 14 days before the directions appointment, file and serve a full statement of evidence setting out all material upon which she relies as to H's wishes and a family to be identify any of H's surviving relatives together with a skeleton argument as to the legal basis of her claims for further relief”
The letter from the solicitors acting for the HFEA and the Human Tissue Authority pointed out that they did...
To continue reading
Request your trial
-
Richard Holdich V. Lothian Health Board
...and Embryology Authority Ex parte Blood [1999] Fam 151 at §§ 2 and 29; L v The Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam) (03 October 2008) at § 19; Yearworth & Ors v North Bristol NHS Trust (CA) [2010] QB 1 at § 37 per Lord Judge CJ giving the judgment of the court......
-
V and W v Kchnt
...as is proper. 18 None of these requirements can be met in the present case. 19 The HFEA points to the court's decision in L v HFEA [2008] EWHC 2149 (Fam). Macur J had heard and granted an out of hours application for a declaration that it would be lawful to retrieve sperm from a recently d......
-
3263
...Fertilisation and Embryology Authority; ex parte Blood [1999] Fam 151 (CA) at 178. L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam). Ibid. approved procedure to be undertaken. If the Ethics Committee were to decline the application, someone would need to make a decisi......
-
Hidden Law‐Making in the Province of Medical Jurisprudence
...an apparently illegal harvesting ofsperm on the basis that it would not reoccur; but note LvHFEA and Secretary of State for Health[2008] EWHC 2149 (Fam) [2009] 1 FCR 138; and R (on the application of AB) vHuman Fertilisationand Embryology Authority [2014] QBD (Admin) Extempore (reported on ......