Humanity and common sense prevail in frozen sperm ruling

The recent case of Warren
v Care Fertility and Anr [2014] EWHC 602 (FAM) signals a move to interpret fertility legislation purposively and positively. The courts permitted a widow to choose when she used her dead husband’s sperm at the
expense of adhering to
strict requirements about patient consent, which is a major legal and ethical pillar underpinning the regulation
of assisted reproduction.

Elizabeth Warren sought a declaration that it was lawful
for the sperm of her husband, Warren Brewer, who died in 2012, to be stored for up to
55 years, i.e. beyond the statutory storage period of ten years (end date: 18 April 2015).

Without the declaration, she would be compelled to start fertility treatment in 2014 while “still grieving” and not wanting
to start a family.

Mrs Justice Hogg concluded that Brewer had “no time limit to this in his mind” after his sperm was stored in 2005. She said there was no evidence to indicate Brewer was given
any information about the law and regulatory requirements regarding storage time for sperm, either in April 2005 or following 1 October 2009, when the relevant new regulations came into force, and when he signed the various consent forms and furthermore wanted Warren to start a family.

Consent in the regulatory framework governing fertility treatments is emphasised throughout the Human Fertilisation and Embryology Authority 1990, the code of practice and in judicial decisions such as Blood and Evans.

All consents must be in writing to be legally effective. This promotes legal certainty while simultaneously underlining patient autonomy – both valuable considerations.

Equally, the legislation and code stipulate that “before a person gives consent, he must be given the opportunity to receive proper counselling, and be provided with such relevant information as is proper”.

However, Hogg J said there was no evidence to show what counselling was offered to Brewer at any time, and that clinic’s failure produced a great and conspicuous unfairness.

If the gametes were allowed to perish at the end of the ten-year statutory storage point, in accordance with the law,
Hogg J stated there would be
“no retrieval of the situation”
and would be tantamount to
“a devastating loss” to Warren
in the event of her wishing to bear Brewer’s child.

The judge noted that the authority did not want the regulations to be “diluted” and
to “stand untrammelled by the court”, and that they wanted clarity, meaning that implicitly arguing hard cases, as here, made bad law.

The authority’s fears that granting Warren justice would open the mythological legal floodgates were exaggerated. Hogg J added: “From a practical point of view, the reality is that there could be a comparatively small number of cases and individuals in similar situations.”

Furthermore, the fact that the authority issued new guidance in May 2012 considerably reduced the likelihood of this scenario being repeated.

Moreover, section 3 (1) of
the Human Rights Act 1998 permitted the court to interpret
the 2009 regulations to be compatible with the European Convention on Human Rights obligations contained in the ECHR articles and, effectively, “depart from the intention of the parliament that enacted” here – the secondary 2009 regulations.

Unjust outcomes

Hogg J contended that, by contrast, “a strict interpretation could produce a very restrictive outcome”. She also accepted that Warren had the article 8 ECHR right “to decide to become a parent by her deceased husband” in accordance with
her dead husband’s wishes and the “written consent he gave” and “never withdrew”.

Forcing her to become
a parent before April 2015
would be a “disproportionate interference” with her article 8 rights and would not “strike a
fair balance”.

Besides, her choosing to become a parent in the future would not “violate anyone else’s rights “, neither could it be interfered with justifiably under any of the permitted grounds
for interference in article 8 (2).

The court’s decision to grant the declaration represents a victory for common sense and humanity. Paradoxically, it does not “diminish” or “dilute” the vital legal and ethical principle of informed and non-informed consent and logical clarity. Instead, it reinforces them
here because they must be human-rights compliant.

Litigants are entitled to
both legal certainty and clarity, and to have their human rights upheld. It is not a matter of either/or but both. SJ

Seamus Burns is a solicitor and senior lecturer in law at Sheffield Hallam University