‘EF’ v Human Fertilisation and Embryology Authority

‘EF’ v Human Fertilisation and Embryology Authority

The court held that, in the particular circumstances of this case, the requirement for written consent under Schedule 3 HFEA 1990 should be read down under s 3 HRA 1998 to allow evidence of consent other than in writing, as AB would have consented to the posthumous use of the embryo by EF with a surrogate had she been given the opportunity, and failure to do so would constitute a disproportionate interference with EF's Article 8 rights.

Parties
Applicant: EF; Interested Party: Human Fertilisation and Embryology Authority
Jurisdiction
England and Wales
Judgment Date
22 November 2024
Procedural Posture
Application for Declaration / Judgment
Outcome
Declaration granted
Legal Topics
Posthumous Use of Embryos, Consent Requirements, Surrogacy, Interpretation of Legislation Under Human Rights Act, Autonomy of Gamete Providers
Family Law Human Rights Law Medical Law Posthumous Use of Embryos Consent Requirements Surrogacy Interpretation of Legislation Under Human Rights Act Autonomy of Gamete Providers

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Parties

EF

Applicant

Human Fertilisation and Embryology Authority

Interested Party

Procedural Posture

Application for Declaration / Judgment

Legal Issues

  1. 1 Whether the statutory requirement for written consent under Schedule 3 HFEA 1990 can be read down under s 3 HRA 1998 to allow evidence of consent other than in writing where failure to do so would breach Article 8 ECHR
  2. 2 Whether the interference with EF's Article 8 rights is disproportionate given the circumstances
  3. 3 Whether AB's wishes regarding posthumous use of embryos can be inferred and respected

Ratio Decidendi

The court held that, in the particular circumstances of this case, the requirement for written consent under Schedule 3 HFEA 1990 should be read down under s 3 HRA 1998 to allow evidence of consent other than in writing, as AB would have consented to the posthumous use of the embryo by EF with a surrogate had she been given the opportunity, and failure to do so would constitute a disproportionate interference with EF's Article 8 rights.

Court Disposition

Declaration granted

Orders

  • Schedule 3 HFEA 1990 is to be read down under s 3 HRA 1998 to allow evidence of consent other than in writing where failure to do so would breach Article 8 ECHR
  • It is lawful for EF to use the embryo created with AB's eggs and his sperm in treatment with a surrogate