Wessex Fertility Limited & Ors v Donor Conception Network

A fertility clinic may contact a gamete donor to request a DNA sample where the donor’s prior refusal to receive health information does not clearly cover the proposed request. The donor retains autonomy and may refuse to provide the sample or decline information about test results.

Any interference with the donor’s Article 8 rights must be necessary and proportionate. Relevant considerations include the donor’s expressed wishes, potential harm or distress, the possible medical benefits to the donor-conceived child and others, the effect on confidence in fertility services, and the safeguards governing contact.

Processing the donor’s personal data may be lawful under articles 6(1)(f) and 9(2)(h) of the GDPR where it is necessary to facilitate medical diagnosis or treatment.

Wessex Fertility Limited sought declarations that it could contact an egg donor, Donor A, and request a DNA sample for trio genetic testing of a donor-conceived child, AH. The testing might assist diagnosis and treatment, but Donor A had repeatedly indicated that she did not wish to be notified if the clinic learned that she had an unsuspected genetic disease or carried a harmful inherited condition.

The Trust supported the application on the basis that the consent wording did not cover the proposed contact. The Human Fertilisation and Embryology Authority was neutral but emphasised consent, privacy and careful communication. The issues concerned the HFEA regime, any duty owed to Donor A, Article 8 rights, and the lawfulness of processing her personal data.

1. Declarations granted. The clinic was entitled to request a DNA sample from Donor A. The request did not compel her to provide a sample, and she remained entitled to refuse.
2. The consent wording was ambiguous. It referred to notification that Donor A had an unsuspected genetic disease or was a carrier of a harmful inherited condition. The present request sought a sample to assist diagnosis and treatment of AH, while it remained unknown whether AH or Donor A had any genetic condition. The court therefore interpreted the consent cautiously but was not overriding a clearly expressed refusal covering the present circumstances.
3. Donor A’s privacy rights under Article 8 were engaged. AH’s rights to know her genetic origins were also relevant. Neither right was absolute. Contact was justified and proportionate because the request could assist diagnosis and treatment, Donor A could refuse testing, she could decline to receive results, and a staged contact plan with support and counselling would mitigate potential harm.
4. The relevant balancing considerations included Donor A’s wishes, the possible distress caused by contact, the uncertain benefit of testing, the potential benefits to AH and other donor-conceived children, confidence in fertility services, and AH’s future right to obtain identifying information about Donor A.
5. It was unnecessary to decide whether the clinic owed Donor A a separate duty of care. If such a duty existed, it would not be absolute and would require a balancing exercise between the risk of harm to Donor A and the interests of AH, assessed by reference to responsible medical opinion.
6. Processing Donor A’s personal data was lawful under articles 6(1)(f) and 9(2)(h) of the GDPR. The legitimate interest was to enable trio testing to improve the prospects of diagnosis or appropriate treatment for AH. The processing was necessary because other routes had been exhausted, and the contact would be made by a health professional under an obligation of secrecy.