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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> L v The Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam) (03 October 2008) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2008/2149.html Cite as: [2008] EWHC 2149 (Fam) |
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FAMILY DIVISION
Strand. London. WC2A 2LL |
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B e f o r e :
____________________
L |
Claimant |
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-and- |
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THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY |
1st Defendant |
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SECRETARY OF STATE FOR HEALTH |
2nd Defendant |
____________________
Dinah Rose QC and Claire Weir (instructed by Morgan Cole) for the 1st Defendant
Marie Demetriou (instructed by DWP/DH Legal Services) for the 2nd Defendant
Hearing dates: 29, 30 & 31 July 2008
____________________
Crown Copyright ©
see also: SCHEDULE TO JUDGMENT
Charles J :
Preamble
Introduction
(i) to preserve a sample of H's gametes; and if she cannot secure treatment here
(ii) to have lawful authority to have those gametes exported for storage and use in a clinic overseas.
" IT IS DECLARED THAT IT SHALL BE LAWFUL FOR
1. [The hospital] to retrieve sperm from the deceased [H] within 24 hours of his death provided that in so doing all due respect and dignity shall be accorded to, and that as little damage as possible is caused, to his body; provided that the procedure is to be carried out by a Consultant or such other medical professional or clinician that has experience of the relevant procedures involved and who will be able to do all that is necessary to ensure the future viability of the sperm retrieved. (The various procedures involved in the retrieval include surgical excision of the epididymis, irrigation or aspiration of the vas deferens, rectal probe electro-ejaculation and orchidectomy.)"
2. The sperm retrieved to be stored at [the Clinic or the Hospital] until further order of the court.
IT IS DIRECTED THAT
3. The said application and this order shall be served upon................the HFEA.........the Human Tissue Authority by 4 p.m. on 27 June 2007.
4. The application be listed for further directions before Macur J on 29th of June 2007, time estimate 30 minutes."
"It is ordered that
1. The 2nd declaration made on 26 June 2007 shall remain in force until further order.
2. The application shall be read listed for directions in October 2007 before Mrs Justice Macur,...........
3. The Applicant shall, not later than 14 days before the directions appointment, file and serve a full statement of evidence setting out all material upon which she relies as to H's wishes and a family to be identify any of H's surviving relatives together with a skeleton argument as to the legal basis of her claims for further relief "
" Upon the court noting that:
(i) the [HFEA] will on 7 November be considering an application for permission under s. 24(4) HFEA 1990 to export gametes for use in treatment of the Applicant;
(ii) that the outcome of that decision may affect the continuation of these proceedings and the need for the directions in paragraphs 2 to 4 below; and
(iii) the court should have available to it all the relevant evidence before considering any further argument on whether it should determine the issue referred to at 2b below.
It is ordered that:
1. The 2nd declaration made on 26 June 2007 (for the continuing storage of the gametes at the [Clinic]) shall remain in force until further order.
2. The [HFEA] shall not later than 4 p.m. on 20 December 2007 file and serve a full statement of evidence setting out all material which it intends to rely in answer to the application limited to evidence relating to the lawfulness of:
a. The retrieval, storage and use of gametes in license treatment services in the UK; and
b. The retrieval and storage of gametes for export. "
(i) the understandable frustration and emotional turmoil of the Claimant resulting from delay and the decision to adjourn consideration of her application for export when it was accepted that there was a discretion to permit it applying the Blood case. To my mind it is very understandable, particularly given her age, that the Claimant would feel that if, as was the case, export was permitted by the HFEA in the Blood case, she too should have permission and thus the opportunity to use the gametes as soon as possible,
(ii) the difficulties for the decision maker caused by (a) the existence until set aside of the declarations made by Macur J and their effect whilst extant, (b) the Claimant's argument that a declaration of incompatibility should be made, (c) the Claimant's argument on the EC Treaty that the storage was (as declared in the interim by Macur J) lawful, and (d) the differences between this case and the Blood case and the result of that case, and
(iii) the difficulties in the underlying issues as demonstrated by the arguments before me, not least of which is the analysis of the reasoning and decision of the Court of Appeal in the Blood case and what turned out to be common ground that if a declaration of incompatibility was made, although the UK legislation would remain binding, the breach of Convention rights founding that declaration would be a relevant consideration for the decision maker.
The facts relating to the wishes of H
(i) L and her husband wanted more than one child, they were hoping for another child and had discussed this with friends,
(ii) 6 days before his death they had taken professional advice and H had raised the issue of IVF,
(iii) discussion between H and a friend who was ill, and
(iv) H's family have confirmed that they support the Claimant in her efforts to have another child using H's gametes
provides powerful support for the view that if H had been asked about the retrieval and use after his death of his sperm in an attempt to enable the Claimant to have another child he would have agreed. To my mind her now unchallenged evidence to this effect is at least as compelling as that advanced by Mrs Blood. In both cases the point can be made that the ethical issues involved are complex and difficult and there is inevitably uncertainty as to how a man, who wanted another child with his wife, would react to the question whether he would support and agree to his wife using his sperm after his death, or to her retrieving of his sperm when he could not consent to this and to her using it after his death.
Ethical issues
Proposed amendments to the 1990 Act
The Effect of EU Law
The Statutory Scheme and related matters, EC Directives, Article 8 and the relevant Treaty Rights with some comments
Issues and the positions of the parties
(i) whether the HFEA does, or does not, have a power to grant a special direction that would have permitted storage in the UK, and then export, of H's sperm if it had been asked to do so before retrieval,
and, if the position is that it had such a power,
(ii) whether the HFEA could not as a matter of discretion by reference to the relevant statutory purposes, and/or the approach in Blood, and/or for other reasons such as the effect of EC Directives, have properly exercised that power so as to permit storage for export and export of H's sperm,
and, if it could
(iii) how the power could be effectively exercised in urgent situations. And further
(iv) whether the HFEA can exercise its power under s.24(4) to permit storage of H's sperm pending the decision it says it will make on their export, and if it refused to do so whether the court could grant interim relief by reference to that refusal to preserve the existence of H's sperm pending a decision of the HFEA on export.
(i) absent appropriate (i.e. effective) consent the 1990 Act provides, and provides clearly as is shown by the Blood case, that such storage would be unlawful and a judge should not authorise it. (Their arguments did not address in any detail the question whether, absent the provisions of the 1990 Act, a judge could authorise the retrieval of gametes from a person who lacks capacity or who is dead), and
(ii) it is for the HFEA, as the statutory decision maker, to determine whether or not to permit export with (or without) a variation of the conditions of the relevant licences and (a) its decision on that is a future question, and (b) the fact of the storage of H's sperm without effective consent, and its lawfulness during and after the expiry of interim declaratory relief, are factors for the HFEA to take into account.
(i) the HFEA indicated in its skeleton argument that it would not initiate any regulatory action pending its decision on export, and
(ii) in oral submission it was mentioned that the manner in which the embryos were preserved in the Evans case might be relevant, but I was not told what this was.
(i) the approach taken by the Court of Appeal in Blood lies behind these difficulties and tension, and that
(ii) in respect of them, and the approach taken on an exercise of the discretionary power conferred by s. 24(4), there is a difference between an assertion that there is no power to do what is sought and/or that the power can never be exercised in that way, and one that the power exists to do what is sought but it will not be exercised in that way in the given case, and will rarely, if ever, be exercised in that way in similar cases.
(i) the arguments advanced before me on the legality of storage, and in particular the submission that storage was a purely domestic issue,
(ii) the formulation of submissions of the Department on Article 8 by reference to whether without effective consent gametes can be (a) stored, and (b) used in the UK, which may indicate a view that storage issues are common to both intended use in the UK and abroad,
(iii) the approach that, like the Blood case, this case a "one off in which the HFEA can and will exercise its discretionary power relating to export on the basis that because of the exceptional and unexpected position in this case it, the Clinic and the court can proceed on the basis that there will be no prosecution, and an equivalent situation of storage being (incorrectly) declared lawful or of unlawful storage pending a determination of the HFEA on export will not happen again,
(iv) the guidance issued by the Chief Executive of the HFEA after the Blood case to licensed clinics indicating that, even if retrieval of gametes could be justified on common law principles, they should not be retrieved where they could not subsequently lawfully be stored and used, and
(v) the letter written shortly after proceedings were issued by the solicitors for the HFEA indicating that it had no discretion in respect of relevant issues.
(1) Can the gametes be lawfully retrieved? As to this only the Claimant advanced a positive case. Both Defendants simply indicated that there were problems.
(2) Can the gametes be lawfully stored for the purpose of use in the UK? There was no argument that this was possible. The relevant argument was whether the position under the 1990 Act that they could not be was incompatible with the Convention.
(3) Can the gametes by lawfully stored for future storage and use in the EU (or abroad outside the EU)? As to this there were competing arguments as to the effect of the EC Treaty. So the arguments related to the lawfulness of storage in the UK for (i) future use in the EU, and then (ii) use after export in the EU, coupled with the pragmatic point that so long as that was being pursued as a realistic possibility it had the practical effect that the gametes would be available for export elsewhere.
(4) Is the prohibition on storage contained in the 1990 Act incompatible with the Convention?
(i) In my view correctly, there was no argument that the proposed treatment of the Claimant could be regarded as being provided for "the woman and the man together", which was an issue in both the Blood and Evans cases.
(ii) No Convention argument was based on Articles 13 or 14, although both are mentioned in the papers. Rather the argument was focused on and confined to Article 8.
(iii) It was common ground that Article 8 was engaged and that this case concerns the Claimant's right to respect for her private life in the manner explained by the Grand Chamber in Evans case (see paragraphs 71 and 72 - (2008) 46 EHRR, 34), and
(iv) it was common ground that the initial extraction, or "retrieval" of sperm is not regulated by the 1990 Act and remains governed by the common law, see the Blood case (in particular at 178 D/F - [1999] Fam).
The position in the UK (excluding the possibility of export)
Storage for use outside the UK, and subsequent use outside the UK
(i) at 180H, concluding that because of the width of the discretion given to the HFEA there cannot be any question of the 1990 Act infringing the Treaty rights, and thus taking an approach that arguably envisages that the discretion can operate widely and therefore, in practice, the HFEA could permit export in all or most cases, and could do so when effective consent to storage and use had not been obtained, but
(ii) arguably concluding elsewhere (e.g. at 178D, 184C, 185C and 185G) that the discretion is limited to cases in which (a) sperm has been stored with effective consent, or (b) the HFEA has given a special direction that permits storage absent such consent, as to which they indicate that it is difficult to imagine reasons why the HFEA would do this,
(iii) proceeding on the pragmatic basis that as, for compelling reasons in that case, there would be no prosecution and the sperm would remain available for export if, on reconsidering the case, the HFEA decided to allow export (this was the case and it seems that the preservation was on the basis that the existing basis of storage based on the arrangement described at 178 C/D, which did not involve any orders of the court, was continued), and
(iv) therefore not fully addressing the issue of further storage pending a decision of the HFEA on export in other cases and the impact of that on the legal and practical effect, and width, of the discretion conferred by s. 24(4).
(i) the overall effect of the Blood case is that the legislation renders the export of gametes without effective consent to storage impossible or impracticable,
(ii) this was not expressly considered by the Court of Appeal in Blood, in particular in the context of the impact that the discretionary power has on the relevant Treaty rights,
(iii) leaving aside the effect of the relevant Treaty rights the court cannot fill any gap pending a decision by the HFEA because it cannot (a) directly or indirectly authorise the commission of a criminal offence, or (b) give consent on behalf of H or modify the relevant licences, and therefore
(iv) the provision requiring effective consent to storage (pending a decision on export or an (interim) decision on storage) is an unjustified interference with her Treaty rights.
(i) whenever gametes were in existence (and thus had been stored) even though that storage was unlawful,
(ii) to allow export (and related storage) without there being effective consent on the basis that the fact that such storage had been or was unlawful was not a determinative factor (albeit that it had weight), and
(iii) prior to retrieval and storage.
(i) the discretion does not extend to a modification of the provisions relating to effective consent or its withdrawal, or
(ii) the discretion only arises, or can only be exercised, when gametes or embryos have been and are being lawfully stored, or perhaps before the storage starts.
(i) to permit storage in connection with a special direction allowing export, and
(ii) to permit storage pending a special direction on storage,
albeit that having regard to the underlying purpose of the power, and more generally the scheme and purposes of the 1990 Act, it would only rarely, if ever, do so. As to this limitation or qualification in my view it is arguable that a difference in approach between (i) and (ii) is appropriate to enable the HFEA to make a properly informed decision in all the circumstances of the given case.
(i) Parliament has given the HFEA (as the statutory decision maker) a discretion which has the result that the 1990 Act itself does not infringe the relevant Treaty rights,
(ii) the exercise of that discretion is governed by public law principles, and thus on the bases identified at p. 184 A/B,
(iii) it is therefore at the stage of a challenge to a decision of the HFEA that issues in respect of Treaty rights arise.
Pausing here
(1) The bases for the declarations sought by the Claimant that continued storage of H's sperm is lawful do not exist, and I therefore refuse to make them.
(2) The HFEA (and the Department) are correct, and the issue of whether or not H's sperm can be exported for use in treatment of L is a matter to be decided by the HFEA as the statutory decision maker.
Article 8 in connection with storage for use after export and use after export and the Treaty and Convention rights in the context of a future decision by the HFEA relating to export of H's sperm
(i) the general position relating to export and its involvement of different regimes in other countries,
(ii) the point that on its face the language of the 1990 Act gives the HFEA an unfettered discretion in particular cases where export is sought to enable changes to be made to the absolute regime set in respect of storage for use, and use in, the UK, and
(iii) the point that in the situation under consideration it has been found that, on a proper analysis applying English law, the width (and thus practical effect) of that power is severely restricted
lead to, or have the potential for leading to, such anomalous or harsh results that the margin of appreciation is inapplicable.
Common law powers / the inherent jurisdiction
Storage and use
Retrieval of Gametes
Miscellaneous
SCHEDULE TO JUDGMENT
The Statutory Scheme
No person shall - store any gametes, or ... use the sperm of any man unless the services are being provided for the woman and the man together ... except in pursuance of a licence.
1. A consent under this Schedule must be given in writing and, in this Schedule "effective consent" means a consent ... which has not been withdrawn ...
2. (2) A consent to the storage of any gametes ... must -
(a) specify the maximum period of storage ... and
(b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it...
3. (1) Before a person gives consent under this Schedule -
(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and
(b) he must be provided with such relevant information as is proper.
(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below.
4. (1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant.
(2)------------------
5. (1) A person's gametes must not be used for the purposes of treatment services unless there is an effective consent by a person to their being so used and they are used in accordance with the terms of the consent.
(2)-------------------
6. --------------------------------
7. --------------------------------
8. (1) A person's gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent --------------------
(2) --------------------
A person who- ... keeps or uses any gametes in contravention of section 4(1)(a) or (b) of this Act... is guilty of an offence.
No prosecution can be brought without the consent of the DPP (s. 42) and s. 41(10) and (11) provide defences in the following terms:
"(10) It is a defence for a person ("the defendant") charged with an offence of doing anything which, under section 3(1) or 4(1) of this Act, cannot be done except in pursuance of a licence to prove -
(a) that the defendant was acting under the direction of another, and
(b) that the defendant believed on reasonable grounds -
(i) that the other person was at the material time the person responsible under the licence, a person designated by virtue of section 17(2)(b) of this Act as a person to whom a licence applied, or a person to whom directions had been given by virtue of section 24(9) of this Act, and
(ii) that the defendant was authorised by virtue of the licence or directions to do the thing in question.
(11) It is a defence for a person charged with an offence under this Act to prove -
(a) that at the material time he was a person to whom a licence [or third party agreement] applied or to whom directions had been given, and
(b) that he took all such steps as were reasonable and exercised all due diligence to avoid committing the offence."
Directions may authorise any person to whom a licence applies ... to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions, and directions made by virtue of this subsection may provide for sections 12 to 14 of this Act to have effect with such modifications as may be specified in the directions.
(I agree with the HFEA that (a) this reflected the clear policy decision in the White Paper that sperm donors and those whose sperm was used posthumously (even with consent, as provided for in the 1990 Act) should not be treated as the fathers of any resulting children: see White Paper, paras. 59 and 88, (b) this section has no bearing on the issue of the consent to be given by posthumous donors and does not "acknowledge the possibility that sperm might be used after [the sperm donor's] death without consent", (c) rather, it provides that, even in circumstances where the required statutory consent has been given, a posthumous donor is not (save in the limited circumstances now set out in sections 28(5A) and (5B) of the 1990 Act, and discussed above) to be regarded as the father of the resulting child, and (d) it would apply, for example, in a case where the donor had given the required consent to his sperm being used after his death, but had not given consent to being treated for the purpose of the 1990 Act as the father of any resulting child (as required by section 28(5A(d)(ii)); or in a case where a donor had consented to the use of his sperm after his death, but he and his partner had not commenced treatment services and were not married at the time of his death.)
EC Directives
Article 8 of the Convention
"49. Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person to whom the services are intended.
50 Services shall be considered to be "services" within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
Services shall in particular include: ---------- (d) activities of the professions."