G v Human Fertilisation & Embryology Authority & Anor

30 September 2024

[2024] EWHC 2453 (Fam)

High Court

A mother wanted to use her deceased daughter's frozen eggs to have a grandchild via a surrogate. The law requires written consent, which the daughter didn't give. Even though the judge felt sorry for the mother, the law was clear: no written consent, no baby. The court couldn't make an exception.

Key Facts

•A young woman, 'N', died from breast cancer after having her eggs harvested and frozen.
•N's mother, 'G', seeks a declaration that it is lawful to use N's frozen eggs, donor sperm, and surrogacy to conceive a child, who would be raised by G.
•N did not provide written consent for posthumous use of her gametes, as required by the Human Fertilisation and Embryology Act 1990 (HFEA 1990).
•G argues that N expressed her wishes verbally and that a 'joint parenting project' existed, justifying a court order despite the lack of written consent.
•The HFEA and the Secretary of State oppose the application, emphasizing the strict consent requirements of the HFEA 1990.

Legal Principles

Prohibition on storage or use of gametes except under license (HFEA 1990, s 4)

HFEA 1990, s 4

Licenses for treatment, storage, and research (HFEA 1990, s 11)

HFEA 1990, s 11

Requirement for written consent for storage and use of gametes (HFEA 1990, Schedule 3)

HFEA 1990, Schedule 3

Article 8 ECHR – right to respect for private and family life

ECHR, Article 8

Human Rights Act 1998 – allows courts to interpret legislation compatibly with ECHR

HRA 1998

Informed consent is a cornerstone of HFEA 1990

Various case law cited, including R(M) and U

Strict interpretation of HFEA 1990; no room for discretion

R (Quintavalle) v Secretary of State for Health

General measures, even if resulting in individual hard cases, can be compatible with ECHR

Animal Defenders International v UK

Outcomes

Application dismissed

The court found insufficient evidence that N gave informed consent to the proposed posthumous use of her eggs. The court also determined that G did not have Article 8 rights engaged, therefore, the court lacked jurisdiction to intervene under the HRA 1998.

G v Human Fertilisation & Embryology Authority & Anor

Key Facts

Legal Principles

Outcomes

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