Warren v Care Fertility (Northampton) Ltd & Anor

Where a clinic’s failure to provide statutory information and obtain properly informed consent prevents compliance with gamete-storage regulations, the court may interpret the legislation compatibly with Convention rights under section 3 of the Human Rights Act 1998.

Article 8 may protect a person’s decision to seek parenthood using the gametes of a deceased spouse, particularly where that intention was clearly expressed and no competing individual rights are engaged. The statutory safeguards remain relevant, but may be interpreted purposively so that a disproportionate result caused by administrative failure is avoided.

Elizabeth Warren sought a declaration that sperm stored by Care Fertility (Northampton) Ltd could lawfully remain in storage beyond the ordinary ten-year period, for up to 55 years, so that she could use it to conceive a child with her deceased husband, Warren Brewer.

Mr Brewer had undergone sperm storage before radiotherapy likely to cause infertility. He later named Mrs Warren as his partner and consented to posthumous use of his sperm, but the clinic supplied forms limiting storage periods and failed to provide the information and medical-certification requirements relevant to extended storage under the 2009 Regulations.

The HFEA resisted the application, contending that the statutory requirements had not been met and that the medical opinion was supplied after Mr Brewer’s death. The central issue was whether the legislation could be interpreted compatibly with Mrs Warren’s Article 8 rights.

1. Declaration granted. It was lawful for Mr Brewer’s gametes to remain in storage for ten years beyond Dr Spooner’s opinion of 17 April 2013, namely until 17 April 2023, with possible further extensions up to the statutory maximum of 55 years if appropriate medical opinion was provided.
2. The statutory scheme required effective written consent to storage, specification of the storage period where it was shorter than the statutory period, and compliance with the medical criteria for extended storage under regulations 4 and 7 of the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009. It also required proper information and an opportunity for counselling.
3. The clinic had failed to provide Mr Brewer with relevant information about the available storage periods and regulatory requirements. The forms had been partially completed by the clinic, and he had not been given a genuine opportunity to consent to storage beyond ten years. The failure caused a grave unfairness to Mr Brewer and Mrs Warren.
4. Mr Brewer’s written consents to posthumous use by Mrs Warren and to being named as the father were not time-limited. The evidence established that he intended Mrs Warren to have the opportunity to use his sperm after his death and would have complied with the extended-storage requirements had he been properly informed.
5. Article 8 protected Mrs Warren’s decision to seek to become a parent by her deceased husband. Unlike Evans v The United Kingdom 2008 43 EHRR 2, the case involved no conflict between the Article 8 rights of two individuals.
6. Following Ghaidon v Godin-Mendoza 2004 2 AC 557, section 3 of the Human Rights Act 1998 required a purposive interpretation, so far as possible, compatible with Convention rights. Regulations 4 and 7 were therefore interpreted as including a person who “was, or may have been likely to become prematurely infertile”.