MEDICAL TREATMENT: L v Human Fertilisation and Embryology Authority and Secretary of State for Health

03 OCT 2008

(Family Division; Charles J; 3 October 2008)

The deceased husband's sperm, having been retrieved by the wife on the basis of a court order, would be preserved pending a final decision on the possible export of such sperm for the purpose of fertility treatment for the wife under the discretion given to the Human Fertility and Embryology Agency by Human Fertility and Embryology Act 1990, s 24(4). The storage of the gametes for use in the UK was not possible because there had been no effective consent by the husband, who had died unexpectedly; the need for effective consent to storage in the UK for subsequent use in the UK was not incompatible with the wife's rights under European Convention on Human Rights. The court expressed preliminary views on a number of questions relating to the possible exercise of the discretion to allow export of the gametes, in particular suggesting that the Agency could consider and grant a special direction that permitted storage and export of gametes prior to retrieval, although it would rarely do so if effective consent to such storage and use had not been given, but that otherwise it was not possibly lawfully to remove or authorise the removal of gametes from a dead person who had not given an effective advanced consent to this.

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