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Family Law

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23 JUN 2015

R (IM and MM) v HFEA [2015] EWHC 1706 (Admin)

R (IM and MM) v HFEA [2015] EWHC 1706 (Admin)
(Queen’s Bench Division, Ouseley J, 15 June 2015)

[The judicially approved judgment and accompanying headnote has now published at [2016] 1 FLR 1211]

Medical treatment – HFEA – Use of deceased woman’s eggs – Parents sought to export eggs for fertilisation and implantation in mother – Consent – Whether the woman had clearly consented to such treatment during her lifetime

Please see attached file below for the full judgment.


The application for judicial review of a decision of the HFEA refusing permission to export the deceased woman’s eggs to a treatment centre in New York was refused.

Before the woman died of bowel cancer she underwent treatment for the removal of her eggs which were stored, unfertilised. She signed an HFEA form permitting posthumous storage of the eggs but did not sign a form concerning donation. The parents claimed that before she died the woman had expressed a strong wish for her mother to have the eggs fertilised by an anonymous sperm donor and implanted in her so that she could give birth to the baby and raise it with the woman's father.

The HFEA 1990 prohibited such treatment and export of the eggs for that purpose as the requisite consent had not been obtained during the woman's lifetime. The parents applied for a special direction from the HFEA to permit treatment. However, the statutory approvals committee had refused three times. The parents sought judicial review.

The application was dismissed. Although it could be ascertained that the woman wanted her mother to be a surrogate in her lifetime, there was not sufficiently clear evidence that she wished for this following her death. The committee had been entitled to reach that conclusion. There had been a general expression of wishes about what should happen after her death but there were many unconsidered and unresolved practical and legal issues. There was no evidence that the woman had consented to the export of her eggs or the use of a sperm donor and had considered the legal repercussions of doing so. Neither was there evidence of her considering the medical or legal issues of her mother acting as a surrogate. This was not a case of the committee simply permitting a lack of paperwork to stand in the way of clearly expressed wishes.

Furthermore, there was no Art 8, European Convention right to use the eggs. The deficiencies in consent meant that it did not amount to a sufficiently informed consent for the HFEA refusal to engage the Art 8 rights of the parents. The refusal was in accordance with law and an interference was justified by the public interests underpinning the Act.
Case No: CO/3077/2014
Neutral Citation Number: [2015] EWHC 1706 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 15/06/2015

Before :

MR JUSTICE OUSELEY

- - - - - - - - - - - - - - - - - - - - -

Between :

THE QUEEN (on the application of IM and MM)
Claimants

- and -

Human Fertilisation and Embryology Authority
Defendant

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Jenni Richards QC (instructed by Natalie Gamble Associates) for the Claimant
Catherine Callaghan (instructed by Blake Morgan) for the Defendant

Hearing dates: 8th May 2015

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R (IM and MM) v HFEA [2015] EWHC 1706 (Admin) 

Judgment

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