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

When deciding whether to authorise the export and posthumous use of gametes despite unmet consent formalities, the Human Fertilisation and Embryology Authority must promote the statutory scheme and respect the importance of effective consent. The required information is not every matter relevant in the abstract. Under Schedule 3 to the Human Fertilisation and Embryology Act 1990, it is the relevant information proper to the individual circumstances.

The Authority must therefore identify the information which the gamete provider needed, assess all the evidence and inherent probabilities, and give reasons for treating particular information as necessary. It may draw fair inferences from the evidence. A decision is unlawful where material evidence is misstated, necessary reasoning is absent, or the statutory question concerning proper information is not addressed.

The appellants sought permission to export their deceased daughter's stored eggs to the United States. They wished to create an embryo using anonymous donor sperm and implant it in the daughter's mother. Their evidence was that the daughter wanted her mother to carry a child after her death and for her parents to raise the child as their grandchild.

The daughter had consented in writing to continued storage and posthumous use, but had not completed the separate form specifying the proposed use. The Human Fertilisation and Embryology Authority's Statutory Approvals Committee refused a Special Direction because it considered the evidence of effective and informed consent insufficient.

Ouseley J dismissed the application for judicial review. The central issue on appeal was whether the Committee's refusal was irrational or otherwise flawed by public law error.

1. Appeal allowed unanimously. The Committee's decision was set aside and the export application remitted for reconsideration.

2. The statutory power to modify consent requirements when authorising export had to be exercised consistently with the objects of the Human Fertilisation and Embryology Act 1990. Effective consent, the provision of proper information and respect for the gamete provider's autonomy were central to that scheme. The delegated power could not be used merely to circumvent the legislation: R v HFEA, ex parte Blood [1999] Fam 151 followed.

3. The Committee materially misstated the evidence. The January 2010 conversation expressly supported the conclusion that the daughter wanted her mother to carry her child after her death. Her signed form contradicted the finding that there was no evidence of consent to posthumous use. It was also perverse to proceed without considering the inherent probability that a single woman proposing posthumous creation of a child understood that donor sperm would be required. Public law permitted the Committee to draw inferences fairly available from the evidence and inherent probabilities.

4. The Committee required information and consent concerning each consequential step, including anonymous donor sperm, export, surrogacy risks and legal parentage. It did not explain why each matter was necessary in the particular circumstances. It also failed to consider whether the daughter had trusted her parents to make the detailed decisions after her death.

5. Schedule 3 required the provision of “such relevant information as is proper”, rather than all information relevant in the abstract. What was proper could vary with the circumstances. By analogy, Montgomery v Lanarkshire Health Board [2015] 1 AC 1430 demonstrated that the information needed for consent may depend upon what would matter to a person in the individual's position. The analogy was not exact because consent to bodily treatment may differ from consent to the use of separated human material.

6. The Committee had to determine the appropriate level of information on a proper assessment of the whole evidence. Only then could it decide whether effective consent had been given. Its failure to undertake that exercise, explain the information demanded and assess the evidence accurately rendered the decision unlawful. The court did not determine the Convention article 8 or property issues.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously, set aside the Committee's decision and remitted the application for reconsideration: [2016] EWCA Civ 611.
2. High Court, Administrative Court: Ouseley J refused to set aside the Committee's decision on 15 June 2015, holding that its assessment of effective and informed consent was lawful and rational. No citation is stated in the judgment.