Man Lawfully Permitted to Use Embryo in Surrogacy Treatment

39 Essex Chambers barristers Jenni Richards KC and Stephanie David represented the successful applicant in his case before Theis J (sitting in the Family Division of the High Court), who on 22 November 2024 declared in EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam) that it is lawful for the applicant to use an embryo created using his sperm and his late wife’s eggs in treatment with a surrogate, notwithstanding the absence of signed, written consent for that use.

The application was brought in reliance on the European Convention on Human Rights (‘ECHR’), given effect in domestic law by the Human Rights Act 1998 (‘HRA 1998’). The same approach had been adopted in Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) and generally approved by the President of the Family Division in G v Human Fertilisation and Embryology Authority [2024] EWHC 2453 (Fam). The Human Fertilisation and Embryology Authority (‘HFEA’) opposed the application.

One of the couple’s core beliefs was in the sanctity of life and the divine purpose in all life forms. They had both grown up in three sibling families and wished to replicate that pattern for themselves.  The couple were able to conceive one child naturally after 5 years of marriage. A second child was then conceived after a few years of trying through IVF treatment which had produced two embryos. The younger child and the applicant’s late wife (‘AB’) then tragically and unexpectedly died. The applicant wished to use the remaining embryo in treatment with a surrogate to honour AB’s wishes and give their older child a genetic sibling. 

The consent forms were in identical terms to those in Jennings where the court determined that the woman’s consent form was not sufficiently clear and did not give Ms Choya sufficient opportunity to provide consent in writing to use of the embryos with a surrogate. The relevant form had been amended following the court’s decision in Jennings. 

It was argued on the applicant’s behalf that a decision preventing him using the remaining embryo in treatment with a surrogate following AB’s death constituted a significant and disproportionate interference with his Article 8 rights, alone and interpreted in light of Article 9, and those rights in the context of Article 14. The HFEA did not dispute that the applicant’s Article 8 rights were engaged but argued that any such interference was proportionate, whether assessed at the level of the general measure or on the individual facts.

The court determined that, based on the evidence before the court, an inference could be drawn that had AB been given the opportunity to give the requisite written consent, she would have wanted the applicant to use their partner-created embryo in treatment with a surrogate in the event of her death. She was not given that opportunity to do so due to an omission in the HFEA scheme, in particular, the lack of clarity in the women’s consent to treatment form (the WT form) that a further form had to be completed when consenting to treatment with a surrogate (WSG form). The court also considered there were omissions in the clinic’s standard operating procedure in force at the time and the HFEA’s patient information leaflet. 

The court proceeded to consider whether the interference with the applicant’s Article 8 rights was disproportionate. The HFEA’s argument, that the proportionality analysis should only be undertaken at the level of the general measure, rather than on the facts of the individual case, was rejected. It was noted that there was no dispute that the requirement for consent to be writing pursued a legitimate aim. The requirement for consent is the cornerstone of the Human Fertilisation and Embryology Act 1990 (‘HFEA 1990’) because of the importance of personal autonomy and giving effect to the wishes of individual gamete-providers. Given the evidence that AB would have wanted the applicant to use the embryo with a surrogate in the event of her death, the court determined that the insistence on written consent, on the facts of this case, would defeat rather than promote the objective of the legislative scheme. The interference with the applicant’s Article 8 rights would be significant, final and lifelong with no countervailing factors to justify the interference. Thus, a decision preventing the applicant from using the embryo would be a disproportionate interference with his Article 8 rights. 

In accordance with its interpretative obligation in section 3 of the HRA 1998, the court read down the provisions in schedule 3 of the HFEA 1990 requiring written consent and determined that the provisions should be read to include an implied discretion for the court to accept evidence other than in writing where a failure to do so would breach Article 8. The Judge observed as follows (para 95):“This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament.”

In the course of her judgment, Theis J set out the observations of the President of the Family Division from G in relation to the operation of the regulatory scheme set out in the HFEA 1990 and the requirements of consent set out therein. The President had emphasised the distinction between applications brought under the strict scheme set out in the HFEA 1990 and those brought outside the scheme and in reliance on the ECHR. Thus, there is a need to demonstrate a breach of an applicant’s Convention rights (which had not been possible on the facts in G). The President also set out the importance of analysing the quality and clarity of the deceased’s wishes by reference to the requirements of the HFEA 1990 scheme; and confirmed that the court could draw appropriate inferences based on conversations with the deceased, which is what the court had done in Jennings and did again on this application. 

39 Essex Chambers was instructed by James Lawford-Davies of LDMH Partners and Ambika Pugalia of Hill Dickinson LLP.