‘EF’ v Human Fertilisation and Embryology Authority

The statutory requirement for written and signed consent under Schedule 3 to the Human Fertilisation and Embryology Act 1990 is a strict requirement within the statutory scheme. It may nevertheless be read down under section 3 of the Human Rights Act 1998 where applying it would disproportionately interfere with Article 8 rights.

Where a gamete provider was not given a genuine opportunity to record consent, and there is clear and compelling evidence of the provider’s wishes, the court may accept other evidence of consent. That approach preserves the legislative objective of respecting personal autonomy and the wishes of gamete providers.

EF sought a declaration that he could use, with a surrogate, an embryo created from his sperm and the eggs of his late wife, AB. AB had completed the applicable HFEA consent form but had not given written and signed consent specifically authorising posthumous use of the embryo in treatment with a surrogate.

EF relied on Articles 8, 9 and 14 of the ECHR and section 3 of the Human Rights Act 1998. The HFEA opposed the application, relying on the strict consent requirements in Schedule 3 to the Human Fertilisation and Embryology Act 1990. The central issue was whether those requirements could be read down in the particular circumstances so as to permit other evidence of AB’s consent.

1. Article 8 engaged. EF’s Article 8 rights were engaged. The interference was significant, final and lifelong because it prevented him from using the jointly created embryo to have a further genetically related child.
2. Evidence of consent. AB had been engaged in fertility treatment with EF and intended to use the remaining embryo for another child. The WT form recorded her consent to use of the embryo in treatment services provided to her and EF together. The court inferred from the form and the detailed evidence of EF, family and friends that AB would have consented to use with a surrogate after her death.
3. No effective opportunity to record the relevant consent. AB had not been given the WSG or ED form, had not been clearly informed of the need to complete them, and the relevant forms and information materials lacked sufficient clarity about posthumous use with a surrogate. The references to other forms, consent to training use and the absence of counselling did not undermine the inference of consent.
4. Proportionality. Although written consent pursued the legitimate aims of autonomy, certainty and compliance with the statutory scheme, insisting on it in these circumstances would defeat rather than promote the central objective of respecting the gamete provider’s wishes. There were no sufficient countervailing factors. Proportionality could be assessed by reference to the individual circumstances; the fact that the legislation was a general measure did not prevent relief in an exceptional case.
5. Section 3 reading. Applying Ghaidan, Schedule 3 could be read down to permit the court to accept evidence of consent other than in writing where there was clear evidence of the gamete provider’s wishes and the only reason for the absence of written consent was the lack of a proper opportunity to give it. That interpretation preserved, and did not undermine, the underlying statutory objective.
6. The court therefore granted the declaration sought. It was unnecessary to determine the claims under Articles 9 and 14.