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Jennings v Human Fertilisation And Embryology Authority [2022] EWHC 1619 (Fam)

Theis J gives permission for a widower to use the last remaining embryo made with his late wife’s egg, where she had not given written consent to posthumous use before her death

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Background

The applicant was Mr Ted Jennings. Mr Jennings And Ms Choya had married in 2009, having been in a loving and committed relationship since 2007. Sadly, they experienced difficulties in conceiving naturally, and had undergone a prolonged period of fertility treatment. They underwent three cycles of IVF at Hammersmith Hospital between 2013 and 2016 which were unsuccessful. Ms Choya subsequently conceived naturally on two occasions in 2015 and 2016, both sadly ending in miscarriage. Thereafter the couple underwent further cycles of (privately funded) IVF at the Centre of Reproductive and Genetic Health ('CRGH'), for which they had re-mortgaged their home.

Following a final cycle of treatment and further batching cycles in late 2018, the couple had two embryos in storage. A single embryo was transferred in November 2018, resulting in Ms Choya falling pregnant with twin girls. At 18 weeks of pregnancy, Ms Choya developed complications which resulted in a uterine rupture. She passed away on 25 February 2019.

This was Mr Jennings' application in relation to the couple's one remaining embryo. He sought permission to use this embryo in future treatment with a surrogate. The application was served on the HFEA and the Secretary of State for Health and Social Care. The HFEA filed evidence as an interested party. The Secretary of State chose not to participate in the proceedings. The HFEA opposed Mr Jennings' application on the basis that there was no valid written consent by Ms Choya at the relevant time to use the remaining embryo in the way now sought in the event of her death.

The MT Form completed by Mr Jennings' gave him an opportunity to consent to an embryo created using his sperm being used for his partner's treatment in the event of his death. Mr Jennings' had consented to this in the MT Form he completed at the relevant time. At the time of these forms being completed, the couple were well versed in completing the forms, and Ms Choya had completed the MT Form signed by Mr Jennings. The WT Form completed by Ms Choya did not contain an equivalent provision for her to consent to the use of the embryo posthumously (via surrogacy) in the event of her death. On the three previous WT Forms she had completed, Ms Choya has consented to the storage and use of the embryos for training purposes in the event of her death or incapacity. However in the final WT Form completed, Ms Choya did not consent to the embryos being used for training purposes in the event of her death of incapacity. This was because, according to Mr Jennings, their intention was that if the current IVF treatment was unsuccessful, they planned to use the last embryo with a surrogate. There is nothing in the HFEA Code of Practice which advises clinics to inform women of the need to complete additional forms in order for their partner to use embryos in the event of the woman's death.

Argument

There was little dispute between the parties about the legal framework. The dispute before the court was how that framework should be applied on the facts of this case.

Submissions of Ms Richards QC on behalf of Mr Jennings are summarised in paragraphs 30-50. In outline, it was argued that:

a. The key requirement of the statutory regime is for consent, rather than written consent;

b. There was evidence that Ms Choya would have wanted Mr Jennings to be able to use the embryo with a surrogate in the event of her death, her consent could therefore be inferred by the court. It could be inferred that she would have given written consent if she had been given sufficient opportunity to do so;

c. Ms Choya was not given such an opportunity to provide that consent;

d. Preventing Mr Jennings from using the remaining embryo was a significant interference with his Article 8 rights;

e. On the facts of this case, that interference with his rights is disproportionate;

f. It is possible using s.3 HRA 1998 to read Schedule 3, HFEA 1990 to enable the evidence of consent to be otherwise than recorded in writing, and as that reading is possible, s.3 HRA 1998 requires the court to read those provisions in that way.

The submissions on behalf of the HFEA by Ms Gallafent QC are set out in paragraphs 51 to 72. It was argued in response that:

a. It is not lawful to use the embryo in treatment with a surrogate without written consent. That need for written consent is an express statutory condition, set out in s.12(1)(c) and Para 1(1), Schedule 3 HFEA 1990;

b. The relevant provisions did not give rise to a relevant interference with Mr Jennings Article 8 rights, but even if it did, there would be no basis for invoking s.3 HRA 1998. This is because to do so would 'stretch the legislative language beyond its natural and intended meaning and go against the grain of the statutory scheme';

c. It was disputed that Ms Choya did not have an opportunity to consent, as the form signed by her indicated that she should speak to her clinic for further information if she wanted the embryos to be used in 'someone else's treatment', this included for the purposes of surrogacy.

Decision

Theis J acknowledged that whilst consent was the cornerstone of the statutory scheme at play, the requirement of that scheme that such consent should be in writing cannot be considered in a vacuum. It was necessary to consider the circumstances in which it was given; the information available; and the opportunity for consent to be given [82].

Neither the HFEA statutory Code of Practice, or internal HFEA Clinic Guides, set out what consent is needed for a woman to consent to posthumous use of the embryo by her partner. Neither guide highlighted what additional forms would be required for a woman to give this consent [87].

Whilst Theis J accepted that the WT Form did give some 'prompts' regarding what a woman should do about providing such consent, it was far from clear. In order to understand, the woman would need to:

a. Read the reference in the WT Form of 'someone else's treatment' as including their surviving partner;

b. Make the connection between that reference and needing to complete the WSG Form (for the storage and use of eggs or embryos for surrogacy);

c. To make these connections when filling in many other forms;

d. And understand this opaque language in the context of embarking on IVF treatment [88].

Theis J went on to conclude that, from the available evidence before the court, she could infer that Ms Choya would have consented to Mr Jennings' using the remaining embryo in surrogacy in the event of her death. This was in the context of further findings, that Ms Choya had not been given the relevant information and/or a sufficient opportunity to discuss it with the clinic [92].

She held that:

'[101]… 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. The 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.

[102] In my judgment this is one of those cases. Mr Jennings' Article 8 right to respect for the decision to become a parent in the genetic sense has been interfered with. The interference with that right is not proportionate on the facts of this case. Whilst the requirement for writing undoubtedly pursues a legitimate aim, in the circumstances of this case, where, on the findings the court has made, there was a lack of opportunity to Ms Choya to provide that consent in writing, in circumstances where I conclude she would have given that consent, the interference with Mr Jennings' Article 8 right would be significant, final and lifelong. There are no weighty countervailing factors to justify the significant interference, there is no conflict of individuals' rights and permitting the application would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent.'

Theis J was satisfied that this decision would not open any floodgates, it being decided on its own particular facts. She therefore resolved that the court was able to, and should, read down the require in Schedule 3 to dispense with the need for written and signed consent in this limited situation, where Ms Choya had been denied a fair and reasonable opportunity while alive to provide that consent for posthumous use of the embryo, and the court had concluded that if given the opportunity she would have consented [104].


Case summary by Bethany Scarsbrook, Barrister, St John's Chambers

For full case, please see BAILII