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This article was first published on LexisPSL Family on 20 March 2014. Click here for a free 24h trial of LexisPSL.

Reproductive rights and the law on consent

20/03/2014 Human Rights analysis: Discussing the High Court's decision in Warren v Care Fertility (Northampton) Ltd, James Lawford Davies, a partner at Lawford Davies Denoon, says the case highlights that rigid rules and strict ultimatums often make uneasy bedfellows with reproductive rights and decisions.

Original news
Warren v Care Fertility (Northampton) Ltd and another [2014] EWHC 602 (Fam), [2014] All ER (D) 65 (Mar) The claimant widow of the deceased sought a declaration that it was lawful for the sperm of the deceased to be stored beyond 2015, so that it could be used by her for the purposes of conceiving children or a child. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009, SI 2009/1582 (2009 Regulations) regarding written consent from a deceased had not been complied with due to an oversight at the clinic where the sperm was being stored. The Family Division relied on the European Convention on Human Rights, art 8 (ECHR) to override the strict meaning of the 2009 Regulations and allow the sperm to be stored further.

What is the significance of this decision?

The outcome was of huge significance tothe claimant. She applied for a declaration that it would be lawful for her late husband's sperm to remain in storage to enable her to have more time to make decisions about her future. The judgment therefore came as a huge relief to her. In terms of its wider legal significance, the case arose out of very unusual circumstances which are unlikely to be repeated. It is, however, a notable addition to the case-law on consent, and also on the application of ECHR, art 8 to reproductive choices and decision-making.

What is the current legal position on the storage of frozen sperm and eggs?
Sperm and eggs can only be lawfully stored under a licence granted by the Human Fertilisation and Embryology Authority (HFEA) pursuant to the Human Fertilisation and Embryology Act 1990 (HFEA 1990). It is a condition of every licence that the consent provisions in HFEA 1990 are complied with. These include the requirements that consents for the storage of sperm and eggs are in writing, that they haven't been withdrawn, and that they specify what is to be done with the gametes if the person who gave the consent dies. The standard maximum storage period for sperm and eggs is ten years, but this may be extended to up to 55 years if certain requirements are met--namely that the person who provided the gamete has consented in writing to a period in excess of ten years, and that a medical practitioner has given a written opinion that the person who provided the gamete is prematurely infertile or is likely to become prematurely infertile. In the claimant's case, it was clear that her husband had given repeated, written and explicit consent that he wanted his sperm for her to be available for her use after his death. The difficulty that arose related to the period for which the sperm could be used--the question was not whether she could use it, only when. The HFEA, the regulator, initially stated that the sperm had to be destroyed in April 2013, and then extended the time frame to April 2015. This created a number of inconsistencies:

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the claimant could only use the sperm samples until April 2015, but any embryos created using the sperm would be available for an additional seven years she could have one child, but would not be permitted to use further samples to have a sibling for her baby, and she could only use the samples in the UK until next year, but could take them abroad for treatment without restriction

What evidence of a donor's intentions would be necessary to warrant an execution of the storage time limit?
HFEA 1990 (and subsequent regulations) sets out what patients have to do in order to give 'effective' consent, and how they are able to extend the storage period for their gametes. However, the claimant's husband was not given the opportunity to consent to an extended period. We therefore provided evidence from his wife, his family and his treating clinician which the court relied upon. Mrs Justice Hogg said:
'I am satisfied from the written evidence produced on behalf of [the claimant] and her own oral evidence that had he have known fully of his options and the requirements [her late husband] would have consented to his sperm being stored for a period in excess of 10 years, up to a maximum of 55 years, and would have obtained the necessary medical opinion required under the 2009 Regulations. I am satisfied it was his wish that [the claimant] should have the opportunity to have the use of his sperm after his death in order to have his child or children if she so wanted, and he would have done everything required of him to achieve this.'

Could the High Court ruling lead to further challenges of decisions to destroy frozen sperm or eggs?
The facts of this case are very unusual and I think it is unlikely that the same circumstances will arise again. The judge also made it clear that her decision was based on the very particular circumstances the claimant was in, and any future challenges will need to be considered on a case-by-case basis. When the HFEA announced that they would not appeal against the decision, they stated that they had concluded that '...the likelihood of future problems is not strong enough to warrant appealing in this case'.

What are the legal challenges in this area?

The rules governing the storage of gametes were drafted very much with the living in mind and apply uneasily to circumstances such as those of the claimant. The HFEA has already revised its guidance for IVF clinics in relation to the ways in which they obtain consent to storage, but it is to be hoped that the 2009 Regulations will be adjusted to better accommodate the subtleties and complexities which may arise for patients and their families.

What should lawyers take from the High Court's decision?

The judgment is perhaps most notable for its purposive interpretation of the 2009 Regulations so as to protect the claimant's ECHR, art 8 right to decide to seek to become a parent by her late husband. Too often consent is relied upon as a 'flak jacket' to protect against liability, rather than as an expression of autonomy. Nobody questioned the claimant's evidence or her husband's intentions--the hurdle was administrative and bureaucratic. However, rigid rules and strict ultimatums often make uneasy bedfellows with reproductive rights and decisions. James Lawford Davies specialises in the law and regulation relating to reproductive and genetic technologies, human tissue and cells, and related research. He advises a large number of clinics and research centres licensed by the HFEA, Human Tissues Authority and Care Quality Commission. He has been involved in most of the leading cases relating to assisted reproduction, embryo and stem cell research. In Warren he represented the claimant, Mrs Elizabeth Warren. Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.