Key Facts
- •EF applied for a declaration that it is lawful for him to use an embryo created using his sperm and his late wife's eggs with a surrogate.
- •EF's wife, AB, died unexpectedly.
- •The embryo was created in 2017 at an HFEA-licensed clinic.
- •The application is based on the alleged interference with EF's Article 8 rights under the ECHR, considering Articles 9 and 14.
- •The HFEA opposed the application.
- •The case hinges on whether AB's consent, while not formally documented for surrogacy, can be inferred from the evidence.
Legal Principles
Article 8 ECHR: Right to respect for private and family life.
European Convention on Human Rights
Section 3 HRA 1998: Interpretation of legislation to be compatible with Convention rights.
Human Rights Act 1998
Human Fertilisation and Embryology Act 1990 (HFEA 1990): Regulates the use of gametes and embryos, requiring written and signed consent (Schedule 3).
HFEA 1990
Proportionality test: Assessing whether interference with a fundamental right is justified.
Various case law, including Ghaidan v Godin-Mendoza
Inference of consent: Courts can infer consent from evidence even if not formally documented.
Case law including G v HFEA
Outcomes
The court granted EF's application.
The court found that the lack of written consent for surrogacy was due to a deficiency in the HFEA scheme and the consent forms, not a lack of AB's willingness. The court inferred AB's consent from the evidence and, applying Section 3 of the HRA 1998, read down Schedule 3 of the HFEA 1990 to allow for evidence of consent other than in writing in exceptional circumstances. The interference with EF's Article 8 rights was deemed disproportionate.