Jefferies v BMI Healthcare Ltd (Human Fertilisation And Embryology)

A consent to embryo storage, and any variation or withdrawal of that consent, must comply with the writing and signature requirements in Schedule 3 to the Human Fertilisation and Embryology Act 1990. An unsigned alteration reducing the storage period is ineffective, even if it may have been made knowingly and intentionally. Initials in the person’s own hand can constitute a signature. Sympathy cannot distort application of the statutory scheme.

The claimant sought a declaration that three embryos could lawfully remain stored for 10 years from their creation. The embryos had been created using her eggs and her deceased husband’s sperm. The original consent form selected a 10-year storage period, but it was later altered to two years. The alteration was not signed or initialled by the husband.

The central issue was whether the alteration was legally effective under Schedule 3 to the Human Fertilisation and Embryology Act 1990. The court also received submissions concerning counselling, informed consent, an alternative consent form and Article 8, but those issues were unnecessary to determine the claim.

1. Declaration granted. The original Form MT was a valid written consent authorising storage for 10 years. The later alteration reducing the period to two years was not signed by Clive and therefore failed to comply with paragraph 1(1) of Schedule 3 to the Human Fertilisation and Embryology Act 1990. That defect independently determined the claim.
2. The statutory requirement that a consent, or a notice varying or withdrawing consent, be “signed by” the relevant person does not require a full signature. Initials written by that person in his own hand are sufficient. The absence of any signature or initials on the alteration was fatal, irrespective of who made it or whether Clive made it knowingly and intentionally.
3. The statutory scheme places primary importance on consent. As explained in Mrs U v Centre for Reproductive Medicine [2002] EWCA Civ 565, the scheme must be respected notwithstanding sympathy for those affected. The judge must nevertheless approach emotionally difficult cases with humanity, empathy and compassion; those emotions cannot determine or distort the legal result.
4. The court left unresolved whether the counselling and information requirements in paragraph 3 of Schedule 3 apply to a variation or withdrawal of consent, whether the evidence established that Clive made the alteration, and whether the separate Form SDFC9 could satisfy paragraph 1(1). The Article 8 arguments were also left undecided.
5. Consistently with the observations in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), the HFEA’s guidance and directions concerning consent forms should be followed meticulously. Forms WT and MT should be checked and independently re-checked for even slight non-compliance.