G v Human Fertilisation & Embryology Authority & Anor

The statutory consent requirements governing storage and use of gametes are strict and essential. Consent must be informed, recorded in writing and signed in the stipulated form. A court cannot waive those requirements within the statutory scheme. It may intervene under the Human Rights Act 1998 only where a person’s Convention rights are engaged and the legislation must be read down to avoid an unlawful interference. Article 8 rights attach to individuals, not to a joint parenting project. A grandparent has no Article 8 right to continue the family line through posthumous use of a deceased child’s gametes. Evidence that a deceased person contemplated surrogacy, without resolving the source of the other gametes, the surrogate or the proposed child’s upbringing, does not establish informed consent to the proposed treatment.

The applicant was the mother of a woman who had died from cancer after storing 20 eggs at a licensed clinic. The daughter had not completed the separate written consent required for posthumous use of her eggs. The applicant relied on conversations in which her daughter referred to the possible need for a surrogate and sought declarations permitting treatment in England and Wales, or export of the eggs to the United States.

The Human Fertilisation and Embryology Authority and the Secretary of State intervened in opposition. The central issues were whether the evidence established informed consent, whether the applicant had Convention rights under Article 8, and whether the statutory requirements could be read down under the Human Rights Act 1998.

1. The applications were dismissed. The evidence did not establish that the deceased had consented to the specific proposed use of her eggs. Her statements established no more than a possible need for a surrogate. They did not resolve the source of the male gametes, the identity or status of the surrogate, or the proposed legal and practical arrangements for bringing up any child.
2. The scheme under the Human Fertilisation and Embryology Act 1990 is a general measure with no discretion to relax its requirements. Effective consent is a cornerstone of the scheme. It must be informed, following proper counselling and the provision of such relevant information as is proper, and must be given in writing and signed in accordance with Schedule 3.
3. The court distinguished the statutory route from cases in which relief had been granted under the Human Rights Act 1998. The reference in Jennings to written consent as an evidential rule did not authorise a clinic, the Authority or a court acting within the statutory scheme to waive the Schedule 3 requirements. It meant that the requirements could be read down under section 3 where necessary to prevent an unlawful interference with an engaged Convention right.
4. The applicant’s Article 8 rights were not engaged. Rights concerning the storage and use of the deceased’s gametes died with her. Article 8 rights attach to individuals, not to a joint parenting project or joint endeavour. A non-partner grandparent could not acquire such rights merely because the deceased had discussed surrogacy or wished the applicant to care for a child.
5. The applicant’s alternative submission based on unfairness to the deceased also failed. Any breach of the deceased’s rights during her lifetime would not confer surviving Article 8 rights on the applicant after her death. There was no free-standing jurisdiction to intervene because a case was exceptional.
6. The same reasoning defeated both the proposed treatment in England and Wales and the application to export the eggs abroad.