Another posthumous conception judgment

Hot on the heels of G v Human Fertilisation and Embryology Authority and Anor [2024] EWHC 2453 (Fam)decided by the President of the Family Division on 30 September 2024, the judgment in EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam) was handed down by Mrs Justice Theis on 22 November 2024.

The notable difference between the two cases is that EF involves an application by a surviving spouse, rather than a surviving parent. Both applications were made outside the Human Fertilisation and Embryology Authority (HFEA) scheme, as written and signed consent was not present in either case. Both relied on the Human Rights Act 1998 (HRA 98) and sought to persuade the court to read down the provisions relating to consent in the Human Fertilisation and Embryology Act 2008 (HFEA 08), to be compatible with the European Convention on Human Rights (ECHR), so that the requested declarations could be made, notwithstanding the lack of written consent.

The details of the case

In EF, the applicant had been married to AB. They had one naturally conceived daughter, X, and required fertility treatment in 2017 to conceive their younger daughter, Y. Tragically, AB and the youngest daughter, Y, died. The couple had one embryo remaining in storage at the time of AB’s death.

EF subsequently applied to the court for a declaration allowing him to use the remaining embryo in treatment with a surrogate.  His ultimate aim was to conceive a sibling for X after her mother and sister’s deaths.

The HFEA opposed the application, arguing that AB had not given her written consent to the posthumous use of the embryo with a surrogate. As was the case in G, had AB provided written consent during her life, it would have been possible for EF to use the remaining embryo with a surrogate. 

The approach

EF’s team relied on the case of Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam), a case with similar issues heard by Mrs Justice Theis and where the sought-after declaration was made. In Jennings, the surviving spouse – the husband – looked to use the partner-created embryo with a surrogate after his wife’s death. During their treatment, Mr Jennings had signed the relevant HFEA form, giving consent for his wife, Ms Choya, to use their partner-created embryo after his death. Ms Choya, however, had not signed the relevant form before her death, which would have given her consent to the posthumous use of their embryo with a surrogate. 

In Jennings, it was held that Ms Choya had not been given an opportunity to complete the additional form to consent to the use of their embryo with a surrogate after her death. Furthermore, the evidence showed that had she been given the opportunity, Ms Choya would have signed the form. Mr Jennings was, therefore, successful in his application and was permitted to use his remaining partner-created embryo with a surrogate.

A similar situation had occurred in regard to EF and AB’s fertility treatment. EF had signed the HFEA form MT (‘Men’s consent to treatment and storage form’, version 4, 1 April 2015). He had consented to storage of the embryos for 10 years and had named AB as able to use the embryos in the event of his death or mental incapacity. He also consented to being registered as the legal father if any child were born as a result of AB’s treatment with their embryo after his death.

AB completed and signed the HFEA form WT (‘Women’s consent to treatment and storage form’, version 6, 20 April 2015). However, this version had no equivalent section to the MT form, asking for the woman’s consent to the use of embryos created with her eggs by her partner in the event of her death or mental incapacity (the same issue as had occurred in Jennings).

Instead, under the heading ‘In the event of your death or mental incapacity’, the form stated that if the female partner wished for her eggs or embryos to be used in someone else’s treatment were she to die or become mentally incapacitated, then she should speak to her clinic for more information. This form also stated that there were further forms to complete in order to donate your eggs (WD form), donate your embryos (ED form) or consent to the use and storage of eggs or embryos for surrogacy (WSG form). 

Whilst AB named EF on her form as her partner and consented to the use of her eggs to create embryos for her own treatment and for the storage of their jointly created embryos for a period of 10 years, she did not consent to the use of her eggs/embryos for training purposes, except for in the event of her death or mental incapacity. This was in contrast to EF, who did not provide consent in the event of his death or mental incapacity.

It is worth noting that the clinic did not provide AB with a copy of the WSG form or discuss with the couple what they would like to happen to their embryos in the event of AB’s death.  

In contrast to G v HFEA, where evidence of the deceased’s wishes for her mother’s use of her eggs in posthumous surrogacy was minimal, EF’s case was that he was certain AB would have consented to posthumous surrogacy had she been given an opportunity to do so and relied on the following: 

• AB and EF had discussed AB’s use of embryos in the event of EF’s death and the importance of the possibility of having a baby in the event of an untimely death, even though they hadn’t discussed surrogacy specifically;

• AB had been supportive of her own sibling freezing his sperm for future-assisted conception and the posthumous use of his gametes. AB was said to be generally supportive of assisted-reproduction techniques;

• AB wanted to use their last remaining embryo to have a third child, as both AB and EF were one of three siblings and wanted to replicate this in their own family;

• AB had even considered back-to-back maternity leave following Y’s birth and had discussed arranging a gynaecological assessment prior to her death. AB’s father supported this evidence;

• AB’s membership of the J religion and its belief in the embryo as a precious life form.

Importantly, EF was fully supported by AB’s family and friends, who filed their own evidence as to AB’s wishes. Such independent evidence was lacking in G v HFEA. 

EF submitted that the statutory requirement for consent to be in writing would deprive him of the opportunity of being a father in a genetic sense to a second child conceived from their embryo and of giving his only child, X, a sibling from her mother. As such, it would amount to a significant interference with his Article 8 rights to a family and private life. 

EF also argued that he would be deprived of the opportunity to honour or fulfil AB’s religious wishes for the embryo to be given a chance of life. This, he argued, breached his Article 9 right to freedom of thought, belief and religion.

Article 14 was also engaged, with there being a difference in treatment between men and women who sign consent forms, due to the different wording. Consequently, a male surviving partner is treated differently to a female and that difference in treatment is not objectively justifiable.

Whilst it was accepted that the requirement for consent to be in writing pursued a legitimate aim, the issue for the court was whether that was sufficient to justify the very significant interference with EF’s Article 8 rights.

It was argued that requiring written consent would be a disproportionate interference with EF’s rights for the following four reasons:

1. Consent, rather than the form itself is the ‘lodestar’ of the statutory scheme and reflects the person’s autonomy;

2. The evidence showed that AB would have wanted EF to use the embryo in this way in the event of her death. The need for consent is not, therefore, being undermined, but rather is being upheld as it supports the principle of the embryos’ use in accordance with both gamete providers’ wishes, which promotes the legislative objective;

3. The only reason written consent was not provided was because AB had not been given the opportunity to do so;

4. This case has the same characteristics as Jennings. 

Section 3 of the Human Rights Act requires legislation to be read and given effect in a way that is compatible with Convention Rights. It was argued that it was possible to read the provisions of Schedule 3 of HFEA 1990 so as to enable consent to be given other than in writing, introducing an implied discretion to accept evidence of consent provided in other ways where a failure to do so would result in a breach of Article 8 and, as such, section 3 HRA requires the provisions to be read in that way. It was submitted that to not do so would frustrate the primary legislation’s objective, i.e., to respect the wishes of gamete providers. 

The HFEA opposed the application, taking its customary hardline position. It argued that the declaration should not be granted because: 

• HFEA 1990 provides a clear and unambiguous legislative framework requiring informed consent to be given in writing and signed;

• AB did not provide such consent;

• AB had sufficient opportunity to provide her consent;

• The Act does not provide for the exercise of any discretion and cannot read down in regard to the requirement for signed written consent. To do so would cross the boundary from interpretation to amendment;

• Any interference with EF’s Article 8 rights, either alone or with Article 9 and/or Article 14, is necessary and proportionate. A resulting ‘hard case’ does not make the requirement disproportionate.

The HFEA submitted that section 3 HRA 98 had no application because Schedule 3 HFEA 90 is Convention compliant or, in the alternative, reading down the provisions would undermine the cardinal principles underpinning the statutory scheme, namely autonomy and legal certainty.

In respect of the evidence as to AB’s wishes, the HFEA argued that whilst AB was offered counselling, there was no evidence that she took it up. This was said to be significant because it cannot be known what she would have wanted to happen to the remaining embryo, especially since at the time that counselling would have been given, the law had not yet changed to allow single applicants to apply for a parental order following a surrogacy arrangement. In addition, the absence of any discussion between AB and EF about surrogacy must give rise to some doubt as to her consent.

The ruling

In her ruling, Mrs Justice Theis reiterated the finding in G that judges need to maintain a firm distinction between cases that fall within the statutory scheme under HFEA 90 and do not need to rely on the ECHR, and those that fall outside the statutory scheme, which must rely on the ECHR to succeed.

Theis found that the evidence as to AB’s wishes, both from EF and from AB’s wider family and friends, was that she would have wanted EF to be able to use their partner-created embryo after her death and involving treatment with a surrogate. The Judge noted that the defects in the WT form in this case were the same as in Jennings. Theis was satisfied that she was able to draw the inference that AB would have recorded her consent in writing had she been given the opportunity to do so.

It was not disputed that the requirement for consent to be in writing pursued a legitimate aim, but the issue was whether that aim was sufficiently weighty to justify that interference. As the evidence established that AB would have wanted EF to use the embryo after her death with a surrogate, insisting on her consent to be in writing would defeat rather than promote the objective of the legislative scheme, which was to follow the wishes of the gamete provider. In this case, the Judge concluded that the interference with EF’s Article 8 rights would be ‘significant, final and lifelong’. 

The court, therefore, was satisfied that Schedule 3 HFEA 90 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing, where a failure to do so would result in a breach of Article 8. Following the principles set out in the leading case, Ghaidan v Mendoza [2004] 2AC 557, such reading was ‘compatible with the underlying thrust of the legislation being construed’ and goes with ‘the grain of the legislation’. 

As Theis decided the matter based on EF’s Article 8 rights, it was not necessary for the court to consider his Article 9 and 14 rights.

The judgment notes that following the Jennings case, the HFEA has updated its WT form to clarify that if a woman wants to give her consent to her surviving partner to use their partner created embryos after her death and with a surrogate, she ‘…will need to receive relevant information, be offered counselling, undergo further screening tests and complete additional consent forms before [she] die[s]. It is therefore vitally important that [she] and [her] clinic discuss posthumous use and the different treatment options.’

EF did not benefit from the update to the WT forms, but fortunately was able to rely on the relevant case law and his Article 8 rights to obtain the declaration.

Conclusion

Whilst we may still see cases like Jennings and EF where the forms were completed prior to the update in 2022, it will likely be much harder for any surviving male partner to use the same arguments deployed in Jennings and EF post-2022 if the relevant information, counselling and screening are offered to the woman but were not taken up. The opportunity, therefore, would have been given but declined. Any human rights argument may, therefore, be much harder to run, although much would depend on the clinic’s evidence that it had complied with its duties.