Continued Storage of Gametes and Embryos Lawful, High Court Rules

In certain circumstances, the courts are able to grant permission for continued storage of gametes or embryos where the strict legislative requirements for consent to such storage have not been complied with. Recently, the High Court considered 15 applications for declarations that it was lawful for gametes or embryos to continue to be stored and to be used where written consent to storage had expired and not been renewed in time.

The applicants' gametes or embryos were stored at a number of fertility clinics. They wished for them to remain in storage but for various reasons, such as the clinic failing to notify them of the need to renew consent, their written consent had not been lawfully renewed as required under Schedule 3 of the Human Fertilisation and Embryology Act 1990. Following an emergency application, the Court had made an interim declaration of lawful storage, which prevented the gametes and embryos from being destroyed but did not permit them to be used. Further applications were made on the basis of the European Convention on Human Rights for declarations that it was lawful for the gametes or embryos to continue to be stored and to be used.

The applicants argued that their rights under Article 8 of the Convention, which protects the right to respect for private and family life, were engaged. They submitted that the Court should interpret the Act to allow them to be permitted to renew their consent.

The Court noted that the legislative regime was strict, permitting of no exceptions. Relief could only be given outside the scheme, by reading in provisions to allow renewed consent. The unbending nature of the legislation provided the protection and certainty that Parliament had intended. However, the protection was not directed at certainty and clarity as freestanding concepts, but at those concepts as they underpinned a regime of effective and informed consent to promote autonomy. The Court also observed that the legislation does not provide any mechanism for dealing with situations where circumstances arise which may be outside a patient's control and which prevent them from renewing their consent when they would have wished to do so.

The Court was satisfied that the applicants' Article 8 rights were engaged. In each case their opportunity to become a parent in the genetic sense had been interfered with as a result of the fact that they were not now able to renew consent. A reading in of an implied opportunity to do so was required, if appropriate on the individual facts of each application, to prevent a breach of Article 8.

Relief was granted in respect of 14 of the 15 applications. One couple had refused consent to storage of embryos, but the clinic had nonetheless placed the embryos in storage. Many years later, after learning that the embryos were still in storage, they had changed their minds. Refusing their application, the Court observed that there was no consent to renew. To allow it would be reading in a facility for a change of mind, rather than an opportunity to renew consent.