A woman has failed in her bid to use her deceased daughter's frozen eggs to give birth to her own grandchild. In R (on the application of IM) v Human Fertilisation and Embryology Authority [2015], the High Court heard how the woman's daughter had consented to, and undergone, treatment at an IVF centre for the removal and storage of her eggs. The treatment was undertaken to preserve the possibility of having a child notwithstanding her diagnosis of bowel cancer and its treatment. She was not married nor did she have a partner during this time. Following her death, her mother applied to the Human Fertilisation and Embryology Authority (HFEA) for permission to export three of the eggs to the US where an IVF clinic was prepared to fertilise and implant them into the mother.
While the HFEA had concerns about the risk to the 58-year-old mother's health if she underwent IVF treatment and pregnancy, they had no fundamental moral objection to a woman carrying her daughter's child. The reason they refused permission was on the grounds that the strict consent requirements under the Human Fertilisation and Embryology Act (1990) had not been met. The mother challenged the decision in the High Court.
Human Fertilisation and Embryology Authority
The HFEA was established to regulate activities under Human Fertilisation and Embryology Act (1990). It issues licences for the storage, use and research on gametes and embryos. It is a condition of each licence issued by the HFEA that schedule 3 of the 1990 Act, which concerns consent, is adhered to.
The law generally accepts that consent can be given in three ways, with each being considered equally effective (Chatterton v Gerson [1981]). Consent can be verbally expressed, given in writing or implied by the actions of a person (Airedale NHS Trust v Bland [1993]). However, under the provisions of Human Fertilisation and Embryology Act (1990) the requirements for consent are much stricter.
In Centre for Reproductive Medicine v U [2002], the Court of appeal (at [24]) stressed that:
‘The whole scheme of the 1990 Act lays great emphasis on consent. The new scientific techniques which have developed since the birth of the first IVF baby in 1978 open up the possibility of creating human life in ways and circumstances quite different from anything experienced before then. These possibilities bring with them huge practical and ethical difficulties. These have to be balanced against the strength and depth of the feelings of people who desperately long for the children which only these techniques can give them, as well as the natural desire of clinicians and scientists to use their skills to fulfil those wishes. Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it.’
In order to proceed with storage, treatment or research, schedule 3 para 1(1) of the 1990 Act requires a written consent that must be signed by the person giving it. The consent must also remain effective throughout. That is, the consent must be fully informed and not have been withdrawn. To ensure a fully informed consent in relation to assisted conception a person must (Human Fertilisation and Embryology Act 1990, schedule 3, para 3):
Consent to the storage of any gametes must then specify the maximum period of storage and state what is to be done with the gametes if the person who gave the consent dies or is unable to vary the terms of the consent or to withdraw it.
The Human Fertilisation and Embryology Act (1990), schedule 3 makes clear that:
Special directions
In R (on the application of IM) v Human Fertilisation and Embryology Authority [2015], the HFEA argued that while the daughter had given an effective, written, informed consent to the posthumous storage of her gametes, she had not stipulated any further use of the gametes in that consent. The mother argued that in a conversation with her daughter some 18 months before her death she had definitively expressed her wish that one or more of the gametes should be fertilised and implanted in her mother, who would give birth and raise the child.
While accepting that the absence of an effective consent prevented treatment in the UK, the mother contended that the conversation should be sufficient evidence of her daughter's wishes to allow the HFEA to make a special direction allowing the export of the gametes.
The 1990 Act does contain some flexibility over the import and export of gametes and allows the HFEA to give special directions permitting export in the absence of consent.
The High Court held that the HFEA had acted correctly in refusing to issue the special direction. The authority had rightly concluded that there was no clear evidence that the daughter had:
Legal implications of her mother acting as surrogate
The daughter had not obtained further information or given clearer instructions in the 18 months between the conversation and her death and so a special direction could not be used to reach a different approach given that an effective, written and informed consent lay at the heart of the 1990 Act.
The Court did, however, hold that the export of the gametes would have proceeded if the requirements of the 1990 Act been met and the daughter had:
The decision in R (on the application of IM) v Human Fertilisation and Embryology Authority [2015] highlights the importance of an effective, informed, written consent is to licensed assisted conception. Women who wish their gametes or embryos to be used after their death must ensure they have clearly stated their wishes and have in place the necessary consents if those wishes are to be respected.