West Law Report

Court cannot act in absence of effective consent

Posted in Times Law Report by mrkooenglish on October 28, 2008

From The Times
October 16, 2008
Court cannot act in absence of effective consent

Family Division
Published October 16, 2008
L v Human Fertilisation and Embryology Authority

Absent effective consent, the court had no power to authorise retrieval or lawful storage of gametes pending a decision of the Human Fertilisation and Embryology Authority on export for further storage and use.

Mr Justice Charles so stated in a reserved judgment in the Family Division, on October 3, 2008, when refusing to make declarations sought by the claimant, Mrs L, that storage and use of gametes retrieved from her husband after his death was lawful.

HIS LORDSHIP said that in respect of issues relating to the retrieval, storage and use of gametes both (a) the autonomy of the donor, and (b) the potential effects of their use without express and informed consent, were engaged after the provider’s death. A fundamental issue was whether the rules relating to effective consent for storage and use of gametes in the United Kingdom as they related to a dead person were within the margin of appreciation.

While the Human Fertilisation and Embryology Act 1990 set an absolute clear and bright line preventing storage for use in the United Kingdom without a donor’s effective consent, the language of the power conferred in section 24(4) of the 1990 Act, its purpose and the absence of any express directions as to its exercise together with R v Human Fertilisation and Embryology Authority, Ex parte Blood ([1999] Fam 151,178A, 184C) enabled the authority to grant a special direction authorising storage pending a decision on export.

Thus, issues of the claimant’s rights under the EC Treaty (OJ 1992 No C224, articles 49 and 50) or the European Convention on Human Rights would arise only on a challenge to that decision.

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