It’s What She Would Have Wanted!
A landmark High Court judgment, Jennings v Human Fertilisation and Embryology Authority 2022 EWHC 1619 Fam, ruled that a husband could lawfully use the embryo created using his sperm and the eggs of his late wife in treatment with a surrogate without the written consent of his late wife.
Mr Jennings and his late wife, Ms Choya, were undertaking fertility treatment to fulfil their wish to have children. The couple had been married since 2009 and had wanted children, but struggled to conceive naturally. They underwent a series of unsuccessful IVF treatments from 2013. Their final treatment of IVF created embryos in 2018, which were stored at the Centre for Reproductive and Genetic Health.
In February 2019, Ms Choya tragically and suddenly died whilst 18 weeks pregnant with twins, at which point one remaining embryo was stored at the Centre. Mr Jennings applied for the last remaining embryo to be used in surrogacy treatment. However, this application was opposed by the Human Fertilisation and Embryology Authority on the basis that Ms Choya did not provide written consent for posthumous use of her embryo which is required by statute.
Posthumous conception – What constitutes consent?
The contention surrounding the posthumous use of the embryo stemmed from the statutory requirement of consent as set out in Schedule 3 of the Human Fertilisation and Embryology Act 1990, as amended by the 2008 Act. Section 12 (1) (c) of the 1990 Act provides that every licence granted under the Act must comply with the consent provisions in Schedule 3.
In summary, Schedule 3 of the 1990 Act requires:
- Consent to be in writing;
- Consent to be provided by each person whose gametes were being used to create the embryo;
- To specify one of the purposes for the use of the embryo, from the following options: treatment services to the persons giving consent and another specified person; treatment services to persons not including the persons giving consent; training and research.
For consent to be effective under section 3 (1) (b) of Schedule 3 of the Act, it states that the consenting party must be “provided with such relevant information as is proper”, and must have been given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps.
Arguments in Favour of Inferring Consent
Counsel for Mr Jennings noted that the requirement under section 3 (1) (b) was unspecific and did not set out what information was required to satisfy consent. Mr Jennings produced evidence to show that Ms Choya would have wanted Mr Jennings to use their embryo in treatment with a surrogate if she died and would have provided consent, if she had been provided with the relevant information and an opportunity to consent.
A further argument was produced to show that a decision preventing Mr Jennings from using the remaining embryo would significantly interfere with his Article 8 right of respect for his private and family life. It was submitted that Ms Choya had provided consent for the use of the embryo in treatment services to her and Mr Jennings and this was not automatically revoked upon her death. She had completed the clinic forms on behalf of Mr Jennings to tick a box to consent to the use of the embryos in Ms Choya’s treatment in the event of Mr Jennings death.
It transpired that the pro forma consent form created by the HFEA did not provide a corresponding provision to allow a woman to consent to the posthumous use of either her eggs or embryos created using her eggs by her partner. The court was invited to find evidence of inferred consent.
Decision
Mrs Justice Theis DBE noted that the HFEA Statutory Code and Guide for Clinics negated to set out what consent should be provided, or which forms needed to be completed, in order for a woman to provide consent to the posthumous use by her partner of a partner-created embryo.
There was no evidence to show that Ms Choya was advised that she would have required to complete further forms to consent to the posthumous use of her partner-created embryo. Justice Theis DBE went on to criticise the absence of the requirement for consent on the forms and the fact that the HFEA’s Code of Conduct and Guidance for Clinics did not prompt clinics to provide parties with information in relation to the posthumous use of embryos. The Judge was satisfied that Ms Choya would have consented had she been afforded the opportunity to do so.
The mandatory requirement of the 1990 Act to provide information ‘as is proper’ to allow parties to provide consent had not been fulfilled. Therefore, it was deduced that the requirement for written consent could not be imposed. The High Court’s decision recognises that the statute’s mandatory requirement of consent was in place to ensure that gametes and embryos were used in accordance with the relevant person’s wishes. However, it should be noted that this case concerned a limited situation where it could be shown that the relevant information and opportunity to provide posthumous consent was not made available when the couple engaged with fertility treatment.
What next?
It is anticipated that the HFEA will amend their forms to clarify how women can provide posthumous consent to embryos being used in surrogacy treatment. If the forms are amended to adequately account for this, it is unlikely that the court will dispense with the requirement for written consent in future circumstances.
BTO’s Family Team are highly experienced in providing advice in relation to assisted reproduction and surrogacy. Please get in touch if you have any queries in respect of the above or any other aspect of Family Law.
Lesley Gordon, Partner & Accredited Specialist in Family Law: lxg@bto.co.uk / 0131 222 2953
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