Mrs U v Centre for Reproductive Medicine

Under the consent regime in Human Fertilisation and Embryology Act 1990, continued storage of gametes requires an effective, unwithdrawn consent. A licensed centre may ordinarily rely on a signed consent form according to its terms unless it is clearly established that the apparent decision was invalid.

Pressure to alter a consent may amount to undue influence only where it deprives the person of an independent decision. Strong but bona fide professional persuasion, even at an insensitive and difficult stage of treatment, did not invalidate the withdrawal on the facts found. The court should be slow to use equitable doctrines to create consent which the statutory form does not otherwise provide.

Mrs U appealed from an order of the President of the Family Division permitting the respondent centre to allow stored sperm, surgically retrieved from her late husband, to perish or be destroyed.

Her husband had originally consented to storage and posthumous use. At a later treatment-planning appointment, after a request from a senior nurse whose centre opposed posthumous insemination, he amended the statutory consent form to provide for the sperm to perish on his death. He died unexpectedly before the treatment produced a pregnancy.

Mrs U contended that the amendment resulted from undue influence and that the original consent therefore remained effective. The central issue was whether the withdrawal was invalid so that the centre had an effective consent to continued storage and use.

1. Appeal dismissed. The President was right to permit the centre to allow the sperm to perish or otherwise destroy it.

2. The scheme of the Human Fertilisation and Embryology Act 1990 makes effective consent essential to the storage and later use of gametes. Mr U’s alteration of the very document recording his consent, made before a representative of the centre and initialled by him, was an especially clear withdrawal on its face.

3. A centre holding a form required by Schedule 3 is entitled and expected to rely on it according to its terms unless it is clearly shown not to embody a valid decision. Forgery, duress and mistake as to the nature of the document are obvious examples. Misrepresentation and undue influence may also be relevant, but courts should be slow to find them established so as to supply a consent which the centre otherwise lacks.

4. The court distinguished Re T (Adult: Refusal of treatment) [1993] Fam 95. Rules concerning life-saving medical treatment did not govern this statutory storage regime, because treatment may sometimes have justifications other than effective consent whereas continued sperm storage did not.

5. The President had not imposed an unduly strict test. Although the nurse’s request created considerable pressure and was insensitively timed, the factual findings did not show that Mr U ceased to think and decide for himself. The appellate court also reached that conclusion: neither spouse sought time, discussion or further advice, and neither raised the matter again when able to do so.

• Court of Appeal (Civil Division): Appeal dismissed in [2002] EWCA Civ 565. The court upheld the order concerning the stored sperm.
• High Court, Family Division (the President): On 25 January 2002, ordered that the Centre for Reproductive Medicine be permitted to allow the sperm to perish or otherwise destroy it.