R v Human Fertilisation and Embryology Authority, ex parte Blood
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 06 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0206-13 |
| Docket Number | QBCOF 96/1519/D |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1997 |
[1997] EWCA Civ J0206-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(THE PRESIDENT, THE RT HON SIR STEPHEN BROWN)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Woolf)
Lord Justice Waite
Lord Justice Henry
QBCOF 96/1519/D
In the Matter of an Application for Judicial Review
LORD LESTER QC and MR P DUFFY (Instructed by Leigh Day & Co, London, WC1X 8PP) appeared on behalf of the Appellant.
MR D PANNICK QC and MS D ROSE (Instructed by Morgan Bruce & Co, Cardiff CF1 3DP) appeared on behalf of the Respondent.
This is the judgment of the Court. The sad circumstances leading to this appeal are now well known. Mrs Blood, now nearly 33 years of age, married her husband Stephen in 1991. They had married according to the rites of the Anglican Church, using the traditional service contained in the 1662 book of common prayer with its emphasis on the importance of the procreation of children within a marriage. However it was only towards the end of 1994 that Mrs Blood and her husband decided actively to try and start a family. Unfortunately, on the 26th February 1995, before Mrs Blood could conceive her husband tragically contracted meningitis.
On the 28th February 1995 Mrs Blood raised with the doctors the question of taking a sample of sperm by electro-ejaculation from her husband who by that time was in a coma. The sample was taken on the 1st March 1995 and was entrusted to the Infertility Research Trust. A second sample was taken the following day shortly before her husband was certified clinically dead. Both samples of sperm are being kept by the Trust pending the resolution of these proceedings. The costs involved are being paid by Mrs Blood. She wants to use the samples to have her husband's child. However, so far, she has been frustrated in this desire because of the decisions which have been made under the provisions of the Human Fertilisation Embryology Act 1990 ("the 1990 Act").
Section 5 of the 1990 Act establishes the Human Fertilisation and Embryology Authority ("the Authority"). The Authority believes that for Mrs Blood to be treated with her husband's sperm in this country would be contrary to the provisions of the 1990 Act. Although Mrs Blood is prepared to be treated abroad and the Authority accepts it has a discretion to authorise the export of the sperm so that Mrs Blood could be treated abroad, the Authority has decided it would not be appropriate for the necessary authority to be given for this to be done.
In view of the position adopted by the Authority, Mrs Blood made an application for judicial review. That application came before the President The Rt Hon Sir Stephen Brown, who in a written judgment given on the 17th October 1996 dismissed the application. The President however gave leave to appeal.
On the 24th October 1996 the members of the Authority decided that they would give further consideration to Mrs Blood's request that her case should be made an exception to the Authority's general directions on the export of sperm. At a meeting of the members of the Authority on the 21st November 1996, after careful and full consideration of the issues during 2_ hours of discussion, the members, notwithstanding their sympathy for Mrs Blood, decided not to exercise their discretion to allow the export of the sperm. The decisions was taken for the following reasons which were duly conveyed to Mrs Blood:
"(a)Parliament has enacted a careful code allowing for the posthumous use of sperm only if specific requirements are met. In particular there is a clear requirement for the written and effective consent of a man, after he has had the opportunity to receive counselling and after he has had a proper opportunity to consider the implications of a posthumous birth. These important requirements were not satisfied in this case.
(b)The Authority does not think that it would be right to allow Mrs Blood to export the sperm to avoid the specific requirements which prevent her from using the sperm in this country. The Authority noted that Mrs Blood has no prior connection with any country to which she wishes to export the sperm.
(c)In the context of the use of genetic material, the Authority considers that any consent should be given in clear and formal terms by the person himself or herself and that the Authority is reluctant to seek to identify a person's wishes from the evidence of another person.
(d)The Authority also bore in mind that Mr Blood had not given any consideration, let alone consent, to the export of his sperm to another country."
Commendably before reaching its decision the Authority gave Mrs Blood's lawyers an opportunity to make further submissions and in accord with the "cards face up" approach which it is appropriate to adopt on an application for judicial review, the Authority made available to this court the material which was available to the members of the Authority when they reached their decision. The approach adopted by the Authority has enabled this court to consider material which was not before the President, including a briefing paper, HFEA (96)(39) prepared for the use of the members.
The paper set out the issues under three heads. The heads are those adopted both on behalf of Mrs Blood in the court below and the President in his judgment. They are:
1.Treatment in the UK as a matter of statutory construction.
2.Treatment abroad as a matter of domestic law.
3.Treatment abroad as a matter of EC law.
In this court Lord Lester QC on behalf of Mrs Blood initially was content to regard the principle issues as being approximately the same but used different heading, which were:
1.The construction issue.
2.The domestic scrutiny issue.
3.The European scrutiny issue.
In response to intervention by the court, he accepted that the division of the issues in this way should not obscure the need for the Authority when considering the question of export, to apply the law as an amalgam of domestic and EC law. This is necessary because European Law is now part of our domestic law, at least when it has direct application as it does in relation to the questions of Mrs Blood's treatment abroad. For this reason in this judgment it is proposed, having made some general comments as to the structure of the 1990 Act to deal with the issues which the appeal raises in a different order and under somewhat different headings from those previously adopted. The headings are:
1.Storage and use in this country.
2.The law which applies to the export of sperm.
3.The validity of the Authority's decision.
In considering the correctness of the approach adopted by the Authority, it is the reasoned decision of the 21st November which is the critical decision, although it obviously post dates both the application and the judgment which gave rise to this appeal. Both Mr Pannick QC on behalf of the Authority and Lord Lester adopted this approach. To adopt any other approach would be inappropriate since if the later decision is lawful, the court as a matter of discretion would never give relief in relation to the earlier decision and if the later decision is unlawful it is almost certain that the earlier decision would be equally unlawful though this may not have been apparent until the Authority gave the reasons for its decision and disclosed the material on which the decision was taken.
The Structure of 1990 Act
Before turning to the issues it is helpful to consider the general framework of the 1990 Act. The 1990 Act gave effect (with some variations) to the recommendations contained in the Report of the Committee of Inquiry into Human Fertilisation and Embryology (The Warnock Report, 1984 Cm 9314). The Act did however have other objectives, including amending the Adoption Act 1967, which are not germane to this appeal. The relevant provisions are those which regulate the keeping or use of gametes and embryos. "Gametes" is a collective term which applies to unfertilised male sperm or female egg cells containing genetic material from one only of the potential parents. After fertilisation by the male sperm, the egg develops into embryo. Section 1 of the Act of 1990 provides:
"1.(I) In this Act except where otherwise stated
(a) embryo means a live human embryo where fertilisation is complete and
(b) references to an embryo include a egg in the process of fertilisation …."
The Act only applies to bringing about the creation or the keeping or use of an embryo outside the mother's body. (Section 1(2) and (3)). It also only applies to live gametes (Section 1(4))
In general the Act achieves the desired degree of regulation by establishing a licensing system for the storage and use of gametes and embryos. It prohibits the storage or use of gametes or embryos except in pursuance of a licence. The Authority is given the responsibility, inter alia, for the granting of licences to the institutions which will be responsible for storing or using the gametes or embryos. The individuals providing the gametes or embryos are not licensed.
As Lord Lester contends, the Act treats the use of sperm in connection with artificial insemination where there is a relationship between the man and woman providing the gametes more favourably than where there is no relationship. The Act does not confine the more favourable treatment to situations of artificial insemination using the sperm of a husband (AIH). The more generous approach extends to artificial insemination with the sperm of a donor (AID) as long as the donor and the woman are...
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