L v The Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Act 1990 creates an absolute bar on storage or use of gametes in the UK without effective consent. The court cannot supply that consent, modify a licence, or declare otherwise unlawful storage lawful.

For export, the HFEA’s discretion under section 24(4) is wider. It may modify licence conditions, including consent requirements, and may authorise storage connected with export or pending an export decision. Whether that discretion should be exercised is for the HFEA. The statutory scheme does not itself infringe Treaty rights because the discretion must be exercised in accordance with public law principles, with Convention and Treaty rights taken into account.

The claimant sought declarations enabling the retrieval, storage and use of sperm retrieved from her deceased husband, either in the United Kingdom or following export abroad. The sperm had been retrieved and preserved under interim orders made by Macur J. The HFEA had adjourned consideration of an export application pending determination of the legal issues.

The central questions concerned the effect of effective-consent requirements under the Human Fertilisation and Embryology Act 1990, the scope of the HFEA’s export discretion under section 24(4), and compatibility with Article 8 of the Convention and Treaty rights concerning services.

1. The declarations sought were refused. Whether the sperm could be exported for treatment was a future matter for the HFEA as statutory decision-maker.

2. For treatment in the UK, the Human Fertilisation and Embryology Act 1990 imposed a clear and absolute requirement for effective consent to storage and use. The deceased had given no such consent. Storage or use without effective consent was unlawful and criminal under sections 4 and 41. The court could not provide consent, modify the relevant licence, or authorise the unlawful conduct through its inherent jurisdiction.

3. The Article 8 challenge to the UK regime failed. The issues were sensitive and involved competing rights and autonomy. Parliament had a wide margin of appreciation, and the differences between this case and Evans v United Kingdom did not make the requirement for effective consent disproportionate.

4. For export, section 24(4) did not create an absolute or bright-line prohibition. Following R v HFEA ex parte Blood, the HFEA could modify mandatory licence conditions, including consent provisions, where gametes existed and were available for export. On the judge’s preliminary view, the power could be exercised before or after retrieval to permit storage connected with export or pending an export decision, although such cases would be rare.

5. The existence of that discretion meant that the Act itself did not infringe the relevant Treaty rights. Those rights arose principally when the HFEA exercised, or declined to exercise, its discretion. The HFEA was required to take Treaty and Convention rights into account.

6. The court expressed preliminary doubts about any power to authorise retrieval of gametes from a dead person without effective advance consent. The issue required fuller argument. The sperm was nevertheless to remain preserved pending the HFEA’s decision on export.