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

The Human Fertilisation and Embryology Act 1990 empowers the statutory authority to license embryo testing for tissue compatibility. An embryo’s suitability for placement in a woman may depend on her particular wishes and needs. It is not confined to viability or freedom from genetic abnormality.

Pre-implantation genetic diagnosis and tissue typing may therefore be activities undertaken in the course of providing treatment services. Their permissibility depends on whether the authority considers them necessary or desirable for that purpose. The Act assigns ethical decisions about embryo selection to the authority, subject to its express statutory prohibitions, Parliament’s regulation-making powers and judicial review.

A child suffering from beta thalassaemia major could potentially be treated with stem cells from a tissue-compatible sibling. His parents wished to use in vitro fertilisation, pre-implantation genetic diagnosis and human leukocyte antigen typing to select an embryo which was free of the disorder and tissue-compatible with him.

The Human Fertilisation and Embryology Authority licensed that treatment. The appellant sought judicial review, contending that the Human Fertilisation and Embryology Act 1990 did not empower the authority to license tissue typing. Maurice Kay J granted a declaration, but the Court of Appeal allowed the authority’s appeal and dismissed the application: [2003] EWCA Civ 667; [2004] QB 168.

The issue before the House was confined to the authority’s statutory power to license tissue typing. It did not concern whether, or subject to what conditions, that power should be exercised.

1. The appeal was dismissed unanimously. Lord Hoffmann and Lord Brown of Eaton-under-Heywood delivered the substantive speeches. Lord Steyn, Lord Scott of Foscote and Lord Walker of Gestingthorpe agreed that the appeal should be dismissed for the reasons they gave.

2. Per Lord Hoffmann, “suitable” in paragraph 1(1)(d) of Schedule 2 to the Human Fertilisation and Embryology Act 1990 derives its content from the statutory context. The Act did not confine suitability to an embryo’s viability or freedom from genetic abnormality. It could include suitability for the wishes and needs of the particular woman receiving treatment. The breadth of that meaning defined the authority’s discretion; it did not compel the authority to approve every possible ground of selection.

3. Pre-implantation genetic diagnosis and tissue typing supply information relevant to a woman’s decision whether to have an embryo placed in her body. They may therefore be undertaken “in the course of” treatment services within section 11 and paragraph 1 of Schedule 2. The authority could regard those activities as necessary or desirable for assisting a woman to carry a child within section 2(1).

4. Per Lord Hoffmann and Lord Brown, the Act’s scheme supported that construction. Parliament expressly prohibited certain practices but otherwise conferred broadly framed licensing powers on a specialist authority with substantial lay representation. The legislation contemplated scientific developments raising unforeseen ethical questions. It left the authority to make ethical distinctions, subject to Parliament’s power under section 3(3)(c) to add prohibitions and to the court’s supervisory jurisdiction.

5. The interpretative guidance in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 did not require a narrow construction. The present Act was designed to regulate future developments, and the activity remained controlled rather than entering an unregulated field. This differed from extending statutory language beyond its expressed meaning: “suitable” was deliberately contextual and broad.

6. Per Lord Hoffmann, challenges to the authority’s changing policy did not affect the issue of statutory power. No irrationality challenge had been made. After a child’s birth, medical procedures undertaken for another’s benefit remained governed by the child’s best interests, with recourse to the court where necessary.

1. House of Lords: Dismissed the appellant’s appeal unanimously and affirmed the Court of Appeal’s conclusion that the authority possessed the statutory power to license tissue typing: [2005] UKHL 28.
2. Court of Appeal: Allowed the authority’s appeal and dismissed the judicial review application: [2003] EWCA Civ 667; [2004] QB 168.
3. High Court: Maurice Kay J granted a declaration that the authority lacked power to authorise tissue typing. No separate citation is stated in the judgment.