L v The Human Fertilisation and Embryology Authority

L v The Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Act 1990 sets an absolute requirement for effective consent to storage and use of gametes in the UK, which is not incompatible with Article 8 ECHR or EU Treaty rights due to the wide margin of appreciation afforded to Parliament; the HFEA possesses discretionary power to permit export and modify licence conditions, but the court cannot declare storage lawful absent such direction or consent, nor can it supply consent or authorise criminal conduct.

Parties
Claimant: L; 1st Defendant: The Human Fertilisation and Embryology Authority; 2nd Defendant: Secretary of State for Health
Jurisdiction
England and Wales
Judgment Date
03 October 2008
Procedural Posture
Judicial Review / Final Judgment
Outcome
Relief refused
Legal Topics
Posthumous Use of Gametes, Consent Requirements, Export of Gametes, Statutory Interpretation, Margin of Appreciation, Treaty Rights, Convention Rights, Inherent Jurisdiction, Ethical Issues in Assisted Conception
Family Law Health Law Human Rights Law European Union Law Posthumous Use of Gametes Consent Requirements Export of Gametes Statutory Interpretation +5 more

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Parties

L

Claimant

The Human Fertilisation and Embryology Authority

1st Defendant

Secretary of State for Health

2nd Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether gametes retrieved from a deceased person can be lawfully stored and exported for assisted conception without effective consent under the Human Fertilisation and Embryology Act 1990
  2. 2 Whether the statutory prohibition on storage without effective consent is incompatible with Article 8 ECHR and directly applicable EU Treaty rights
  3. 3 Whether the court has inherent jurisdiction or common law powers to authorise retrieval, storage, or export of gametes absent statutory consent

Ratio Decidendi

The Human Fertilisation and Embryology Act 1990 sets an absolute requirement for effective consent to storage and use of gametes in the UK, which is not incompatible with Article 8 ECHR or EU Treaty rights due to the wide margin of appreciation afforded to Parliament; the HFEA possesses discretionary power to permit export and modify licence conditions, but the court cannot declare storage lawful absent such direction or consent, nor can it supply consent or authorise criminal conduct.

Court Disposition

Relief refused

Orders

  • Declaratory relief sought by the Claimant is refused.
  • The issue of export of gametes is to be decided by the HFEA as statutory decision maker.