Victory in the High Court in relation to the posthumous use of an embryo

The High Court (Theis J) has declared that it is lawful for Ted Jennings, a widower, to use an embryo, created using his sperm and the eggs of his late wife, Fern-Marie Choya, in treatment with a surrogate.

In the judgment, the court observed that consent is the cornerstone of the statutory scheme regulating the donation, storage and use of gametes and embyros, as principally set out in the Human Embryology and Fertilisation Act 1990. Whilst the statutory scheme requires consent to be in writing, that requirement cannot be considered in a vacuum - consideration needs to be given to the circumstances of the consent, in particular the available information and the opportunity to consent. Furthermore, the court observed that:

"Consent is a critical issue within the statutory scheme but what is important is to consider the role and purpose of consent in the statutory scheme, which is to ensure that gametes and embryos are used in accordance with the relevant person's wishes. TheĀ  reference to written consent is an evidential rule with the obvious benefits of certainty but it is not inviolable where the circumstances may require the Court to intervene."

The court inferred, from all the available evidence, that Ms Choya would have consented to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death, had she been given the opportunity to do so by the clinic.

The requirement for Ms Choya to provide consent in writing constituted a disproportionate interference with Mr Jennings' Article 8 rights, particularly the decision to become a parent in the genetic sense. Indeed, in circumstances where Ms Choya would have consented, the interference with Mr Jennings' Article 8 rights would be "significant, final and lifelong".

The court therefore read down, and dispensed with, the requirement for written and signed consent within the statutory scheme, in accordance with its obligation in section 3 of the Human Rights Act 1998.

Jenni Richards QC, Catherine Dobson and Stephanie David act for Mr Jennings, instructed by James Lawford Davies of Hill Dickinson.

Read The Guardian's coverage of the case here

Read the BBC's coverage of the case here