M, R (on the application of) v Human Fertilisation and Embryology Authority

Permission to appeal may be granted where the proposed grounds disclose an arguable case with a real prospect of success. The court may consider whether the decision-maker and first-instance judge arguably adopted an improperly rigorous approach to the statutory scheme. The issue included whether evidence of a deceased gamete provider’s informed consent had been assessed too narrowly, with insufficient attention to what she had said and done.

Mr and Mrs M sought permission to appeal against Ouseley J’s order of 15 June 2015 dismissing their judicial review claim. The claim challenged the Human Fertilisation and Embryology Authority’s refusal to issue a special direction under the Human Fertilisation and Embryology Act 1990, permitting the export of their deceased daughter AM’s frozen eggs to New York for fertilisation and implantation into her mother.

The proposed appeal concerned whether AM had given sufficiently informed consent during her lifetime, and whether the Authority and the judge had imposed requirements more stringent than the statutory scheme demanded.

1. Permission granted. Treacy LJ concluded that the submissions disclosed an arguable case with a real prospect of success. Floyd LJ agreed.
2. The proposed appeal raised an arguable question whether the HFEA and Ouseley J had adopted an improperly rigorous approach to special directions. The statutory scheme permitted modification of consent requirements, including the requirement for written consent by the gamete provider.
3. It was arguable that undue emphasis had been placed on what AM had not done or said, rather than on what she had done and said before her death. The January 2010 conversation between AM and her mother required proper assessment.
4. It was also arguable that the Authority and the judge had required more than the Human Fertilisation and Embryology Act 1990 demanded, including by failing to take sufficient account of AM’s terminal condition and the possibility that she had no reason to know that further decisions or evidence would be necessary.
5. Because the four grounds were interrelated, permission was granted for the whole matter to be argued.

• Court of Appeal (Civil Division): Permission to appeal was granted against the order of Ouseley J dated 15 June 2015.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Ouseley J dismissed the judicial review claim challenging the HFEA’s refusal of a special direction.