In a unique decision arising from a woman’s tragic death when pregnant with twins, the High Court gave posthumous effect to her longstanding wish to have a child by granting her bereaved husband permission to make use of an embryo stored in a fertility clinic.
The woman was 18 weeks pregnant when she died without warning. Desperate to have children, she and her husband had endured the roller coaster of repeated IVF cycles. Stored at the clinic was a single embryo that had been created using their gametes. The husband applied to the Court for permission to use the embryo in treatment with a surrogate.
The application was resisted by the Human Fertilisation and Embryology Authority on grounds that the woman had not given written and signed consent to the use of the embryo for such a purpose in the event of her death. Such consent is required by the Human Fertilisation and Embryology Act 1990.
Granting the husband’s application, the Court found that his wife had not been given a sufficient opportunity to provide the required consent prior to her death. It noted that a standard consent form in use by fertility clinics at the time did not provide any opportunity for a woman to consent to a partner-created embryo being used for her partner’s treatment in the event of her death. The form was far from clear on that point and the clinic had not specifically raised it with her.
Had she been afforded a reasonable opportunity to consent to posthumous use of the embryo, the Court found that she would have done so. To refuse the husband’s application would in the circumstances amount to a significant, final and lifelong interference with his human right to respect for his family life. There were no weighty countervailing factors that could justify such a disproportionate interference.
The Court acknowledged that the statutory requirement for written consent pursues a legitimate aim. However, on the particular facts of the case and in order to afford due respect to the husband’s human rights, it was possible to read down the legislation so as to waive the requirement. Such an outcome, the Court noted, did not go against the grain of the legislation and would not open any floodgates.