(Court of Appeal, Sir James Munby P, Arden, Burnett LJJ, 30 June 2016)
Medical treatment – HFEA 2008 – Consent – Parents sought to export the eggs of their deceased daughter to the USA for treatment – HFEA Committee refused to approve – Appeal
The parents’ appeal from the HFEA decision not to permit the export of their deceased daughter’s stored gametes for treatment in the USA was allowed.
When she was seriously ill, the daughter consented to treatment for egg removal and storage (including after death), and also to the use of her eggs after death. Following her death her parents claimed that it had been their daughter's wish for her eggs to be used to create an embryo using donor sperm and for it to be implanted into her mother. The parents would raise the child as their grandchild. However, the daughter had not completed any form which detailed that specific use. The parents applied to the HFEA seeking to export the eggs to a fertility clinic in the USA to carry out their daughter's wishes.
Despite the mother giving evidence of conversations between herself and her daughter regarding her daughter's wishes, the Statutory Approvals Committee of the HFEA refused to approve the request on the basis that there was insufficient evidence that the daughter had given consent to the proposed use of her gametes after her death. The parents brought judicial review proceedings, claiming that the decision had been irrational and that the committee had taken into account matters which it should not have.
The judge held that the decision had been lawful and that the committee had been entitled to conclude that there had been no sufficiently clear evidence that the daughter had intended the mother to act as a surrogate after her death.
The parents appealed.
The appeal was allowed, the decision set aside and the case remitted to the committee for reconsideration.
The decision below had been in error insofar as there were: misstatements of material evidence; a failure to provide reasons why the committee had considered that the daughter had to have certain information before she could give effective consent; a failure to decide what relevant information the Act required the daughter to have had.
The conclusion that the daughter had not explicitly expressed a wish for her mother to carry her child after her death flew in the face of the mother's evidence, which had not been rejected. The committee had also concluded that there was no evidence that the daughter had consented to the use of her eggs after her death, which was plainly inconsistent with the form of consent that had been signed.
Neutral Citation Number:  EWCA Civ 611
Case No: C1/2015/2189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Mr Justice Ouseley CO30772014
Royal Courts of Justice
THE PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE ARDEN
LORD JUSTICE BURNETT
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On the application of MR AND MRS M
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HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY
Jenni Richards QC and Rose Grogan (instructed by Natalie Gamble Associates) for the Appellants
Catherine Callaghan (instructed by Blake Morgan) for the Respondent
Hearing date: 25 May 2016
R (On the application of Mr and Mrs M) v Human Fertilisation and Embryology Authority  EWCA Civ 611