The Queen (on the application of IM and MM) v Human Fertilisation and Embryology Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 15 June 2015 |
| Neutral Citation | [2015] EWHC 1706 (Admin) |
| Date | 15 June 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3077/2014 |
[2015] EWHC 1706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/3077/2014
Jenni Richards QC (instructed by Natalie Gamble Associates) for the Claimant
Catherine Callaghan (instructed by Blake Morgan) for the Defendant
Hearing dates: 8th May 2015
On 12 June 2011, AM died aged 28 from the bowel cancer with which she had been diagnosed in November 2005. She was the only and much loved child of the Claimants. It is her parents' desire to carry out her deepest wishes, as they believe them to be, which underlies this very sad case.
AM had wanted to preserve the possibility of having a child, notwithstanding the cancer and its treatment. During a period of remission in 2008, she underwent treatment, at the IVF Centre, Hammersmith, for the removal of her eggs, which were then frozen and stored, unfertilised. She signed a form produced by the Human Fertilisation and Embryology Authority, HFE Authority, which permitted the posthumous storage of those eggs. They are not embryos; they are gametes. She was not married and had no partner during any of this time. The Claimants believed that, before she died, AM expressed the strong wish to her mother, Mrs M, notably in January 2010, that one or more of her eggs, after being fertilised, should be implanted in her mother who would give birth to the baby and, with Mr M, would bring it up.
The Claimants want Mrs M to be implanted with one or more of the eggs, fertilised by an anonymous sperm donor, yet to be chosen by them. But this is not permissible in the UK under the Human Fertilisation and Embryology Act 1990, the HFE Act, as the necessary written consents were not obtained during AM's lifetime, nor could the eggs be exported for that purpose under General Directions made by the HFE Authority under the HFE Act, since certain requirements could not be met, notably in relation to informed written consent. So the Claimants applied for a Special Direction from the HFE Authority which would permit their export to a treatment centre in New York, for use in the way proposed. The HFEA refused this three times: in November 2013, on reconsideration in March 2014, and on 28 August 2014. The last decision is the one in substance now challenged. The decisions were made by the Authority's Statutory Approvals Committee, the Committee, under its delegated powers.
The Claimants challenge that decision on the basis first, that the Committee's appraisal of the evidence about the wishes and understanding of AM especially as expressed to her mother was irrational; second, on the basis that the Committee had failed to observe the necessary distinction between General and Special powers of Direction and had decided the case effectively on the basis of the General Directions rather than on the full discretionary powers in relation to Special Directions; and third, that the decision was an interference with the Article 8 ECHR rights of the Claimants and of Mrs M in particular, for which there was no proportionate justification.
I should also say at the outset what this case is not about. The Defendant did not reach its decision on the basis of any adverse view about the mother carrying her daughter's fertilised egg through pregnancy to birth, nor, save in relation to AM's understanding of the risks to her mother, about the mother's age, now 58. Nor did it reach its decision forming any adverse view about the welfare or upbringing of any future child. Those are issues upon which the Defendant could have decided that a Direction be refused, but it did not do so here. No such issues are before the Court for decision either. I am concerned only with the lawfulness of the decision on the grounds on which it was made: the scope of the discretionary powers, the appraisal of the evidence about AM's wishes, and the effect on the Article 8 rights, if any, of the Claimants.
The Legal Framework
The HFE Authority was set up under section 5 HFE Act 1990. Section 4 prohibits the storage or use of any gamete, that is unfertilised egg or live sperm, except in pursuance of a licence. Licences are granted under s11 by the HFE Authority. Section 12(1)(c) makes it a condition of every licence that Schedule 3 to the Act is complied with by the licence holder. Schedule 3 is concerned with consent, which is a very important aspect of the HFE Authority's approach to the regulation of licensed activities under the Act.
Schedule 3 para 1(1) provides that consent under the schedule "must be signed by the person giving it". "Effective consent" means consent which has not been withdrawn, i.e. written and continuing consent. Para. 2 provides:
"2(1) A consent to the use of any embryo must specify one or more of the following purposes—
(a) use in providing treatment services to the person giving consent, or that person and another specified person together,
(b) use in providing treatment services to persons not including the person giving consent, […]
(2) A consent to the storage of any gametes, or any embryo or any human admixed embryo must—
a) specify the maximum period of storage (if less than the statutory storage period),
b) except in a case falling within paragraph (c), state what is to be done with the gametes, embryo or human admixed embryo if the person who gave the consent dies or is unable, because the person lacks capacity to do so, to vary the terms of the consent or to withdraw it, …
and may (in any case) specify conditions subject to which the gametes, embryo or human admixed embryo may remain in storage."
Para 3 imposes two separate requirements in relation to effective consent:
"(1) Before a person gives consent under this Schedule—
(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and
(b) he must be provided with such relevant information as is proper."
Thus effective consent must be fully informed as well.
Paras 5 and 6 and 8 apply here and are important:
"5(1) A person's gametes must not be used for the purposes of treatment services or non-medical fertility services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.
(2) A person's gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.
(3) This paragraph does not apply to the use of a person's gametes for the purpose of that person, or that person and another together, receiving treatment services.
6 (1) A person's gametes or human cells must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo, the creation of which may be brought about with the use of those gametes or human cells being used for one or more of the purposes mentioned in paragraph 2(1)(a), (b) and (c) above.
8 (1) A person's gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent."
I should also refer to the definition of "mother" in s28: "the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child". This applies wherever, in the UK or elsewhere, the mother was when the embryos, sperm or eggs were placed in her.
In the UK, the child at 18 is entitled to know the identity of the sperm donor, and to establish contact; sperm is donated on that basis. I was told by Counsel that, in New York, the sperm donor has the option of deciding whether that should occur.
As Ms Callaghan for the HFE Authority submitted, the HFE Act prohibits the storage or use of gametes in the UK without effective, fully informed consent. The Act itself permits no exceptions. Posthumous use of gametes requires the effective consent of the gamete provider. The donor's next of kin, here AM's parents, the Claimants, have no right under the Act to decide on the use or disposal of her gametes.
The Act does contain some flexibility, however, over the import and export of gametes and embryos. Section 24(4) contains a general power to give directions and in relation to export provides:
"Directions may authorise any person to whom a licence applies to… send gametes… outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions, and directions made by virtue of this subsection may provide for sections 12 to 14 to have effect with such modifications as may be specified in the directions."
The reference to ss12–14 means that schedule 3 conditions can be modified, including effective consent provisions.
This power has been exercised by way of General Directions 0006 "The import and export of gametes and embryos". Its requirements in schedule 4 include, in paragraph 1(d), that the person who provided the gametes "has…given and not withdrawn consent in writing to the gametes…being exported to the country in which the receiving centre is situated", 1(e) before giving that consent, that the gamete provider "has been given a written notice stating that the law governing the use of gametes…and the parentage of any resulting child may not be the same as in the UK, and they have been given any further information which they may require", and 1(h) that the...
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