More than a dozen fertility patients have had their hopes of future parenthood preserved by a High Court judge, who ruled that administrative errors should not force the destruction of their embryos, eggs, and sperm.
In a landmark decision, Mrs Justice Morgan granted declarations that it would be lawful to continue storing biological material in 14 out of 15 cases before the court. The patients, some of whom are former cancer patients, had faced the loss of their stored genetic material because consent for its storage had technically lapsed.
The judge delivered a powerful critique of an overly rigid application of the law, stating from the High Court in London that “it is surely consent that is important, not consent by an immutable date.” She found it “hard to conclude that parliament intended the possibility of parenthood should be removed by the ticking of a clock.”
The Crucial Consent Window and Pandemic Confusion
The case centred on the UK’s strict consent laws for fertility storage, overseen by the Human Fertilisation and Embryology Authority. Clinics require written consent from clients every decade to continue storing embryos, eggs, or sperm, rules designed to prevent material being kept or used without knowledge or permission.
This situation was exacerbated by the COVID-19 pandemic, which caused significant disruptions to fertility services. In response, a two-year extension to storage consent deadlines was introduced for those using services on 1 July 2020. However, the HFEA acknowledged this temporary measure inadvertently caused confusion, with some clinics failing to notify patients when renewal was due, leading to consent lapsing.
Lawyers for the 15 patient groups argued that in these circumstances, the material should be preserved. The move was unopposed, with no objections raised by the fertility clinics involved, the HFEA, or the health secretary.
A Distinct Case Where the Ruling Differed
In the one case where the judge ruled against the patients, the circumstances were legally distinct. The court heard the couple had not originally consented to an embryo being stored, but one had been retained accidentally. They now wished to use it.
Mrs Justice Morgan drew a clear line here, stating this was not a matter of renewing lapsed consent but represented a fundamental change of consent. “To be permitted to take advantage of the storage of the embryo which they say ‘contradicted’ their express wishes because the clinic acted on the wrong consent form to change their mind is not in my judgment renewing consent. It is a change of consent,” she ruled.
The judge noted that while laws around human fertilisation and embryology were “unbending,” the “rigidity of the scheme is not rigidity for its own sake.”
The ruling underscores the complex legal landscape of fertility treatment in the UK, which has seen previous cases dealing with errors in consent forms leading to disputes over legal parentage. The HFEA, as the independent regulator, oversees licensing and enforcement.
This case also comes in the wake of recent changes to UK storage laws. From July 2022, all patients can store eggs, sperm, and embryos for up to 55 years, provided they reconsent every decade.
Internationally, the UK’s focus on individual consent contrasts with other legal approaches. A recent Alabama Supreme Court ruling in the United States, for instance, declared frozen embryos to be children, creating significant implications for IVF services in that state.
