[2014] EWHC 602 (Fam) EW used the judicial review process to apply for a declaration that it was lawful to store the sperm of her deceased husband WB beyond the period set out in (a) his consent
[2014] EWHC 602 (Fam)
EW used the judicial review process to apply for a declaration that it was lawful to store the sperm of her deceased husband WB beyond the period set out in (a) his consent form and (b) relevant legislation. The court granted a declaration that it was lawful for sperm to be stored beyond the statutory period as a more strict interpretation of the legal position would constitute a disproportionate interference with the rights under the ECHR and that the applicable regulations (which are written in the present tense) should be interpreted purposively to include the past tense.
EW and WB began a relationship in 2004. WB was diagnosed with a brain tumour in 2005. WB was referred to a fertility clinic for sperm storage as treatment for his cancer was likely to cause infertility. WB signed the clinic's standard consent form which provided for storage for three years. The clinic contacted WB at various times to confirm his consent to storage and use of his sperm. WB continued to consent to storage and in 2008 consented to EW using his sperm after his death and signed further consent forms extending the storage period for periods specified by the clinic. The Human Fertilisation and Embryology Act 1990 (as amended) provides that, with the necessary consent< a deceased man's sperm may be used by his named partner to create an embryo. The initial maximum storage period was ten years. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 allows that period to be extended to a maximum of 55 years provided that (a) the sperm provider gives written consent for storage beyond 10 years and (b) a medical practitioner certifies that the donor "is prematurely infertile or is likely to become prematurely infertile." WB had not provided written consent for use of his sperm beyond ten years. The judge ultimately found that this was because the clinic had not provided him with the opportunity to do so.
WB died in February 2012. After his death, WB's oncologist wrote to EW's solicitors stating that WB had been at risk of infertility and that it had been clear that he had wanted EW to be able to have his children. The HFEA advised EW that it interpreted the forms as WB consenting to storage for a period of ten years but its position was that the court should not override the Regulations by permitting an oncologist's opinion, provided after WB's death, to fulfil the requirements.
The judge found that WB had clearly wanted to have a family and stored his sperm for this reason, including for EW to have his children after his death and that, had he been given the opportunity to consent to storage beyond the ten-year period mandated in the clinic's forms, he would have done so. The judge held that the clinic had not provided adequate counselling or information to WB and had failed to fulfil its obligations to both WB and EW which resulted in great and conspicuous unfairness. While WB had not given written consent to storage for more than 10 years, this was because the clinic had not given him that option.
The central issue in the present case was whether the strict wording of the 2009 regulations should be overridden. The judge held that the regulations should be interpreted in a purposive way that was compatible with EW's Article 8 right to family life. Applying the purposive approach under s.3 of the Human Rights Act, the judge held that the 2009 regulations should be interpreted to allow for a medical opinion to be provided after the donor's death. The judge indicated that while the HFEA wanted certainty in the wording of the regulations, this scenario would only apply to very few cases. The judge held that on that basis it was right and proper, and proportionate, for the declaration sought by EW to be made.
This is another fascinating example of human rights law being used in medical and in particular fertility cases, where the right to family life may impact on the interpretation of the statutory regime.
EW used the judicial review process to apply for a declaration that it was lawful to store the sperm of her deceased husband WB beyond the period set out in (a) his consent form and (b) relevant legislation. The court granted a declaration that it was lawful for sperm to be stored beyond the statutory period as a more strict interpretation of the legal position would constitute a disproportionate interference with the rights under the ECHR and that the applicable regulations (which are written in the present tense) should be interpreted purposively to include the past tense.
EW and WB began a relationship in 2004. WB was diagnosed with a brain tumour in 2005. WB was referred to a fertility clinic for sperm storage as treatment for his cancer was likely to cause infertility. WB signed the clinic's standard consent form which provided for storage for three years. The clinic contacted WB at various times to confirm his consent to storage and use of his sperm. WB continued to consent to storage and in 2008 consented to EW using his sperm after his death and signed further consent forms extending the storage period for periods specified by the clinic. The Human Fertilisation and Embryology Act 1990 (as amended) provides that, with the necessary consent< a deceased man's sperm may be used by his named partner to create an embryo. The initial maximum storage period was ten years. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 allows that period to be extended to a maximum of 55 years provided that (a) the sperm provider gives written consent for storage beyond 10 years and (b) a medical practitioner certifies that the donor "is prematurely infertile or is likely to become prematurely infertile." WB had not provided written consent for use of his sperm beyond ten years. The judge ultimately found that this was because the clinic had not provided him with the opportunity to do so.
WB died in February 2012. After his death, WB's oncologist wrote to EW's solicitors stating that WB had been at risk of infertility and that it had been clear that he had wanted EW to be able to have his children. The HFEA advised EW that it interpreted the forms as WB consenting to storage for a period of ten years but its position was that the court should not override the Regulations by permitting an oncologist's opinion, provided after WB's death, to fulfil the requirements.
The judge found that WB had clearly wanted to have a family and stored his sperm for this reason, including for EW to have his children after his death and that, had he been given the opportunity to consent to storage beyond the ten-year period mandated in the clinic's forms, he would have done so. The judge held that the clinic had not provided adequate counselling or information to WB and had failed to fulfil its obligations to both WB and EW which resulted in great and conspicuous unfairness. While WB had not given written consent to storage for more than 10 years, this was because the clinic had not given him that option.
The central issue in the present case was whether the strict wording of the 2009 regulations should be overridden. The judge held that the regulations should be interpreted in a purposive way that was compatible with EW's Article 8 right to family life. Applying the purposive approach under s.3 of the Human Rights Act, the judge held that the 2009 regulations should be interpreted to allow for a medical opinion to be provided after the donor's death. The judge indicated that while the HFEA wanted certainty in the wording of the regulations, this scenario would only apply to very few cases. The judge held that on that basis it was right and proper, and proportionate, for the declaration sought by EW to be made.
This is another fascinating example of human rights law being used in medical and in particular fertility cases, where the right to family life may impact on the interpretation of the statutory regime.