IM & Anor, R (on the application of) v Human Fertilisation and Embryology Authority

A Special Direction permitting export of gametes may modify requirements in General Directions, but it must advance, rather than undermine, the statutory purposes of the Human Fertilisation and Embryology Act 1990. Consent remains central. The decision-maker may therefore examine whether an oral expression of wishes was sufficiently clear, settled and informed about the particular proposed use. A general wish for posthumous use is insufficient where important medical, legal and practical issues were not addressed. Article 8 does not confer a right to use another person’s gametes without sufficiently informed consent. In any event, refusal may be justified by the statutory scheme and the expert authority’s reasoned assessment.

The claimants, the parents of AM, challenged the Human Fertilisation and Embryology Authority’s refusal of a Special Direction allowing their deceased daughter’s frozen eggs to be exported to New York. They intended that the eggs should be fertilised with donor sperm and implanted in the claimant mother, who would carry and raise the resulting child.

The challenge alleged irrational assessment of AM’s wishes, an unlawful failure to distinguish Special Directions from General Directions, and disproportionate interference with the claimants’ Article 8 rights. The central issues were whether the evidence established sufficiently clear and informed consent to the particular proposed use, whether the Authority lawfully exercised its discretion, and whether Article 8 was engaged or breached.

1. Claim dismissed. The Authority was entitled to conclude that the evidence did not establish a settled, sufficiently clear and informed intention that AM’s eggs should be used after her death in the particular way proposed.
2. The January 2010 conversation with AM’s mother was evidence that AM wished her mother to act as surrogate after AM’s death. The Committee’s description of it as a possible exception was too narrow. That error did not affect the result, because the conversation did not address important matters including donor sperm, export, foreign law, donor identity and contact, the medical risks to the mother, or legal motherhood.
3. The absence of signed forms was not treated as independently decisive. It was relevant because the form AM signed referred to a separate form governing use of the eggs, while the evidence showed that the proposed use had not been discussed or resolved in a sufficiently informed and settled way.
4. The power under section 24(4) of the Human Fertilisation and Embryology Act 1990 to make Special Directions was not a free-standing power to disregard the Act’s central consent policy. The Committee could consider why the General Directions could not be satisfied and whether the oral evidence covered, with adequate clarity and information, the matters that written consent would have addressed. Its approach was lawful and rational.
5. The claimants had no Article 8 right to use the gametes on the evidence found by the Authority, because there was no sufficiently informed consent to the proposed use. Alternatively, any interference was in accordance with law and justified by the public interests embodied in the statutory scheme. The later evidence from AM’s aunt did not materially alter that conclusion.

First-instance judicial review claim. The claim challenged the Authority’s decision of 28 August 2014, following refusals in November 2013 and March 2014.