R v Human Fertilisation and Embryology Authority, Ex parte Blood (Blood, Ex parte)

Preserved sperm may be stored and used for treatment only under a licence and with the donor’s effective written consent. The exception for a man and woman receiving treatment together ceases when the man dies before the sperm is used.

An authority deciding whether to permit export for treatment in another member state must treat a refusal which makes that treatment impossible as an interference with the recipient’s directly effective freedom to receive services. It must then determine whether the restriction is non-discriminatory, justified by an imperative public interest, suitable and no more extensive than necessary. A decision reached without addressing those matters is unlawful.

Mrs Blood wished to use sperm obtained from her unconscious husband shortly before his death. The sperm had been preserved without the effective written consent required by the Human Fertilisation and Embryology Act 1990. The Human Fertilisation and Embryology Authority concluded that treatment could not lawfully occur in the United Kingdom and declined to make a particular direction allowing export for treatment abroad.

The President of the Queen’s Bench Division dismissed Mrs Blood’s application for judicial review but granted leave to appeal. After that decision, the Authority reconsidered the request and again refused export on 21 November 1996. The Court of Appeal treated that reasoned decision as the critical decision.

The issues were whether storage and treatment were lawful in the United Kingdom, which law governed export, and whether the Authority had lawfully exercised its export discretion in light of directly effective Community rights to receive medical services in another member state.

1. Appeal allowed. The Authority correctly concluded that the sperm could not be stored or used for treatment in the United Kingdom without the donor’s effective written consent. Its decision refusing a particular export direction was nevertheless unlawful because it had failed to address material considerations arising under Community law.

2. Preservation constitutes storage under the Human Fertilisation and Embryology Act 1990. Storage must always occur under a licence and in accordance with Schedule 3, including its requirements for effective written consent. The sperm had therefore been stored unlawfully, although no criticism was made of those who acted humanely and in good faith in an unexplored legal situation.

3. The exception for treatment services provided to a woman and man together did not apply. The time when the sperm is used is critical. Once the man has died, he cannot be treated together with the woman. Moreover, stored sperm requires written consent even where the couple had previously been receiving treatment together. Re B (Parentage) [1996] 2 FLR 15 depended on its special facts, including the man’s participation in treatment and the absence of any withdrawal of his deemed consent.

4. Sections 23 and 24 conferred a broad discretion to authorise export in a particular case. Articles 59 and 60 of the EC Treaty gave a Community citizen a directly enforceable right to receive medical services in another member state. Viewed functionally, refusing export made the desired treatment impossible and therefore interfered with that freedom.

5. Interference did not itself establish a Treaty breach. The Authority had to determine whether the restriction was non-discriminatory, justified by an imperative requirement in the general interest, suitable for achieving its objective and no more extensive than necessary. Ethical and moral concerns, and prevention of evasion of domestic legislation, could in principle justify regulation within the permitted margin of appreciation.

6. The Authority had not adequately considered the Community right or the fact that the exceptional circumstances should not recur because future preservation without written consent would be unlawful. It was not inevitable that the Authority must permit export, but it had to reconsider the matter under the correct law. The court declared the November refusal unlawful and allowed the appeal with costs here and below, with liberty to apply for mandamus or other relief.

1. Court of Appeal: Allowed Mrs Blood’s appeal. It upheld the conclusion that domestic storage and treatment required written consent but declared the Authority’s November 1996 refusal of an export direction unlawful.
2. Queen’s Bench Division: The President, Sir Stephen Brown, dismissed the application for judicial review in a written judgment dated 17 October 1996 and granted leave to appeal.
3. Human Fertilisation and Embryology Authority: Following the first-instance judgment, the Authority reconsidered the requested exception and again refused export on 21 November 1996. The Court of Appeal treated this later reasoned decision as the critical decision.