Quintavalle (on behalf of Comment on Reproductive Ethics) v Human Fertilisation and Embryology Authority

The House of Lords considered whether the Human Fertilisation and Embryology Authority (the authority) had power under the Human Fertilisation and Embryology Act 1990 to licence pre-implantation genetic diagnosis (PGD) and tissue (HLA) typing of IVF embryos. The key statutory provisions in issue were section 2(1) (definition of "treatment services"), section 11, and paragraph 1(1)(d) of Schedule 2 (licensable activities "to determine whether embryos are suitable" for placement in a woman). The majority concluded that the concept of "suitable" must be interpreted in light of the Warnock Report, the White Paper and the scheme of the 1990 Act and that it can include characteristics relevant to the woman’s decision whether to carry the embryo (so permitting licences for PGD and, in appropriate cases, HLA typing). The court emphasised that ethical limits and prohibitions remain in the Act and that Parliament retains the power to restrict or remove the authority's licence-making powers by regulation. The appeal was dismissed.

This was an appeal by Ms Quintavalle, director of a group opposed to certain uses of embryonic manipulation, challenging the Human Fertilisation and Embryology Authority's power to grant licences permitting HLA tissue typing of IVF embryos. HLA typing was proposed to identify embryos whose stem cells could treat an existing sick sibling. The authority had granted a licence permitting PGD and HLA typing; Maurice Kay J at first instance granted a declaration that the authority lacked power, but the Court of Appeal allowed the authority and dismissed the claim ([2004] QB 168; [2003] EWCA Civ 667). The present appeal to the House of Lords followed.

The nature of the claim/application: judicial review seeking a declaration that the authority had no power under the 1990 Act to authorise HLA typing of embryos.

The issues framed by the court included:

• whether activities such as PGD and HLA typing fall within paragraph 1(1)(d) of Schedule 2 as "practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose";
• the proper construction of "treatment services" in section 2(1) and the scope of the authority's licensing powers under section 11 and the Schedule;
• the relevance of the Warnock Report and the White Paper, and the statutory scheme including express prohibitions and regulation-making powers, to that construction.

The House of Lords gave detailed statutory construction reasons. It rejected a narrowly textualist meaning confined to viability or only to elimination of genetic defects, preferring a contextual and purposive approach. The Warnock Committee's recommendations and the White Paper showed Parliament intended a broadly framed licensing regime with lay and ethical oversight to deal with future developments; the Act expressly prohibited certain defined activities but otherwise left the authority discretion to licence activities "in the course of" providing treatment services provided they appeared necessary or desirable. The court held that determining whether an embryo is "suitable" for implantation can include characteristics relevant to the mother's decision whether to carry a child (and thus may encompass HLA typing). The Lords observed that Parliament and the Secretary of State retain powers (for example section 3(3)(c) and the regulation-making mechanism) to prohibit specific practices if considered unacceptable, and that the authority itself is composed and structured to address ethical questions. The appellate court's decision was therefore upheld and the appeal dismissed. The Lords noted there was no allegation that the authority had acted unreasonably in granting the licence, and the case concerned the scope of power not its exercise.

The appeal was dismissed. The House of Lords held that, on a purposive construction of the Human Fertilisation and Embryology Act 1990 (notably section 2(1), section 11 and paragraph 1(1)(d) of Schedule 2), the Human Fertilisation and Embryology Authority has power to licence activities such as PGD and, where appropriate, HLA tissue typing because determining whether an embryo is "suitable" for implantation may include characteristics relevant to the prospective mother's decision; statutory prohibitions and the regulation-making powers provide safeguards.

First instance: Maurice Kay J granted the declaration that the Authority had no power to license HLA typing (declaration granted). Court of Appeal: appeal allowed and application dismissed ([2004] QB 168; [2003] EWCA Civ 667). House of Lords: appeal dismissed ([2005] UKHL 28).