The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked within a strict statutory framework. His task was to calculate the application of that law, and then to check its compliance with Human Rights law. The 1990 Act said that the embryos could only be stored or used with the consent of both parties. Once mutuality is required at the point where treatment services are being provided, the requirement of continuing consent is inescapable. The refusal of treatment was an interference with the right to private life of the applicant, but nevertheless it was proportionate. There are two pillars in the 1990 Act, the interests of the child and the consent of the two persons who are to be the parents of the child and consent to be treated together or to the use of their genetic material. The appeal failed.
Lord Justice Sedley Lord Justice Thorpe Lady Justice Arden
[2004] EWCA Civ 727, Times 30-Jun-2004, [2004] Fam Law 647, [2004] 2 FLR 766, [2004] 2 FCR 530, [2004] 3 All ER 1025, (2004) 78 BMLR 181, [2005] Fam 1, [2004] 3 WLR 681
Bailii
Human Fertilisation and Embryology Act 1990, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Evans v Amicus Healthcare Ltd and others; Hadley v Midland Fertility Services Ltd and Others FD 1-Oct-2003
The claimants and their former partners had undergone fertility treatment resulting in frozen embryos being kept pending possible implantation. The relationship had in each case failed, and the potential fathers had refused consent, but the . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Re F (In Utero) 1988
A foetus prior to the moment of birth does not have independent rights or interests. . .
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Cited – In re R (Parental responsibility: IVF baby) CA 19-Feb-2003
The mother and father of the child were not married, but had consented to the terms of their infertility treatment. The father donated his sperm, but the mother was only inseminated after they had separated. The mother appealed a declaration of . .
Cited – U v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Regina (P) v Secretary of State for the Home Department, Regina (Q) v Same QBD 1-Jun-2001
The Prison Service’s policy of refusing to allow children over the age of eighteen months to stay with their mother in prison was lawful. The impairment of family life was an inevitable and inherent part of the imposition of a sentence of . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – In Re W and B (Children: Care Plan) In Re W (Child: Care Plan) CA 7-Jun-2001
Courts should take additional powers under the Act for the management and implementation of care plans made in care proceedings. In these cases, an order had been made on the basis of a care plan which subsequently proved impossible to implement, . .
Cited by:
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Leading Case
Updated: 11 November 2021; Ref: scu.198405
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