AA & Ors v The Human Fertilisation and Embryology Authority & Ors

The statutory scheme governing storage and use of gametes and embryos is strict and permits no exceptions within the scheme. Its purpose is not certainty and restriction alone, but the protection of autonomy through effective and informed consent.

Where a person was not given a fair and reasonable opportunity to renew consent within the statutory period, HRA 1998, s 3 may, in an appropriate individual case, permit the court to read in an opportunity to renew consent. Relief must be fact-specific. It is unavailable as a general category-based remedy or to permit a change of mind where there was no prior consent to renew.

Fifteen patients applied for declarations that specified gametes or embryos could lawfully remain in storage and be used, although written consent had expired and had not been renewed within the statutory time limits. The applications followed an urgent interim declaration made by Cusworth J on 23 December 2024, preserving the material from destruction.

The applicants relied on Article 8 ECHR and Human Rights Act 1998, s 3(1). The HFEA did not oppose relief, subject to the court’s assessment of each case. The SSHSC submitted that the statutory scheme was strict, that any remedy had to be individual and exceptional, and that the central issue was whether each applicant had been given a fair and reasonable opportunity to renew consent in accordance with the legislation.

1. Statutory scheme. The Human Fertilisation and Embryology Act 1990, as amended by the Health and Care Act 2022, established a strict scheme requiring effective written consent for storage and imposing time limits and renewal procedures. The scheme was not rigid for its own sake: certainty and restriction supported the fundamental objective of informed consent and patient autonomy.
2. Convention-compatible interpretation. Article 8 rights were engaged because expiry of consent could permanently prevent genetic parenthood. Under s 3(1) of the Human Rights Act 1998, it was permissible in principle to read in an opportunity to renew consent, even though the legislation was silent and the required words would effectively be added. The interpretation had to remain compatible with the underlying thrust and fundamental features of the legislation. It could not create a general discretion or undermine the statutory scheme.
3. Applicable question. The court asked whether, by reason of the particular facts, the applicant was unable to renew consent because he or she had not been given a fair and reasonable opportunity to do so in accordance with the legislation. That question had to be determined separately in every case. The existence of clinic error, patient error, vulnerability or personal distress did not itself determine the outcome.
4. Proportionality and relief. Relief was appropriate where the interference with Article 8 rights was significant, final and lifelong, there were no sufficient countervailing factors, and reading in an opportunity to renew consent would neither go against the grain nor undermine the objectives of the statutory scheme. The court granted relief in fourteen applications, including cases involving failures to notify, inaccurate expiry dates, missing forms, inadequate follow-up and confusing communications. It refused relief in YY and ZZ’s case: the evidence established an original refusal of consent, followed by a later change of mind, which could not properly be characterised as renewal of consent.
5. Orders. The successful applications for declaratory relief were granted. Counsel were invited to prepare draft orders. The judgment did not create a general category of cases in which relief would automatically follow.