Ted Jennings v Human Fertilisation and Embryology Authority

Consent under the statutory scheme must ordinarily be written and signed. The requirement must, however, be considered with the obligation to provide proper information and a sufficient opportunity to give consent. Where a person was denied that opportunity, and the evidence establishes that written consent would have been given, the court may exceptionally read down the writing requirement. This is permissible where it preserves the central legislative objective of ensuring that gametes and embryos are used in accordance with the relevant person’s wishes. The court may infer consent from the surrounding evidence. A disproportionate interference with Article 8 rights may otherwise result.

Ted Jennings sought a declaration permitting him to use, with a surrogate, an embryo created from his sperm and the eggs of his late wife, Fern-Marie Choya. The embryo had been created during fertility treatment and remained in storage after Ms Choya’s death.

Ms Choya had not completed written consent specifically authorising posthumous use of the embryo in surrogacy. Mr Jennings argued that the consent forms and clinic process failed to give her a proper opportunity to provide that consent and that the court could infer what she would have done. The HFEA opposed the application, relying on the express statutory requirement for written and signed consent. The central issues concerned the statutory consent scheme, Article 8, and the interpretive power under section 3 of the Human Rights Act 1998.

1. Outcome. The declaration was granted. The court held that Mr Jennings could use the partner-created embryo in treatment with a surrogate after Ms Choya’s death.
2. The Human Fertilisation and Embryology Act 1990 requires consent to embryo use to be written and signed, given by each relevant gamete provider, and directed to one or more specified statutory purposes. Use of a partner-created embryo with a surrogate engages both treatment for the person giving consent and another specified person together, and treatment for persons not including the person giving consent.
3. The writing requirement could not be considered in isolation. Schedule 3 also required proper counselling and such relevant information as was proper. The WT form and the clinic process did not clearly explain that additional consent forms were required for posthumous use by a surviving partner of a partner-created embryo. Ms Choya therefore lacked a fair and reasonable opportunity to provide written consent.
4. On the evidence, including the couple’s discussions, Ms Choya’s expressed wishes concerning their children, her treatment decisions and supporting evidence from family and friends, the court inferred that she would have consented to the proposed use.
5. The refusal would substantially and finally interfere with Mr Jennings’ Article 8 right to respect for the decision to become a parent in the genetic sense. Although the writing requirement pursued a legitimate aim, the interference was disproportionate. There were no weighty countervailing factors, and permitting the use would not undermine the fundamental statutory objective of consent.
6. Under section 3 of the Human Rights Act 1998, the court could read down the writing and signature requirement in this narrowly defined situation. The decision was confined to cases where a person had been denied a fair opportunity during life to provide consent and the evidence showed that consent would have been given. The HFEA was invited to consider revising the WT form.