EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam) (22 November 2024)

Parties

Procedural Posture

Application for Declaration (family Division) / Judgment After Final Hearing

Legal Issues

1. 1 Whether the statutory requirement for written and signed consent under Schedule 3 HFEA 1990 can be read down under s 3 HRA 1998 to allow posthumous use of an embryo where there is clear evidence of the deceased's wishes but no written consent
2. 2 Whether refusal to allow use of the embryo constitutes a disproportionate interference with Article 8, 9 and/or 14 ECHR rights
3. 3 Whether the difference in consent form wording between men and women constitutes unjustified discrimination under Article 14 ECHR

Ratio Decidendi

The statutory requirement for written and signed consent under Schedule 3 HFEA 1990 is a strict and essential feature of the legislative scheme. While the court has power under s 3 HRA 1998 to read down statutory provisions to avoid breaches of Convention rights, such reading down is only justified where there is clear and unambiguous evidence of the deceased's wishes and the absence of written consent is solely due to lack of opportunity. In this case, the evidence demonstrates that AB would have wanted EF to use the embryo posthumously with a surrogate, and the only reason written consent was not provided was the failings of the consent process. The requirement for written consent is...

Court Disposition

Declaration granted in favour of the applicant.

Orders

• It is lawful for EF to use the embryo created with his sperm and his late wife's eggs in treatment with a surrogate.
• Paragraph 1 of Schedule 3 to the HFEA 1990 is to be construed pursuant to s 3 HRA 1998 to dispense with the need for written and signed consent in this case.