High Court allows patients to keep frozen embryos, eggs and sperm

The High Court of England and Wales has ruled that several patients' gametes and embryos cannot be destroyed after errors resulted in consent to storage expiring.

Fifteen patients, some of whom had stored reproductive materials before cancer treatment, asked the court to declare that gametes and embryos could be lawfully stored and used in treatment, despite express written consent to storage not having been renewed in the timeframe required by legislation. Mrs Justice Morgan ruled that it would be lawful in 14 of the 15 cases.

She stated in her judgment that laws surrounding storage of gametes and embryos were rigid, but added, 'It is surely consent that is important, not consent by an immutable date. I find it hard to conclude that parliament intended the possibility of parenthood should be removed by the ticking of a clock, not in the cliched phrase, the ticking of the biological clock, but by the ticking of the clock beyond midnight of the day when existing consent expires, whatever might be the circumstances.'

In some cases, clinics had failed to contact patients when renewal of consent was required, or patients failed to understand the urgency of these requests. Errors were discovered during audit processes or upon patients requesting to use their samples, only to discover that consent for storage and use was no longer valid.

The Human Fertilisation and Embryology Authority and the Secretary of State for Health and Social Care joined the case as interested parties, but did not oppose the applications.

Confusion regarding the storage concerned two pieces of legislation: the extension of storage granted due to the Coronavirus pandemic (see BioNews 1044) and the Health and Care Act 2022, which extended the storage period from ten to 55 years, requiring consent to be renewed every ten years (see BioNews 1111).

Lawyer James Lawford Davies of LDMH Partners, representing the group, commented that despite the legislation being well-intentioned, clinics and patients had difficulty understanding and applying the new rules.

'The cases before the court have arisen as a result of errors, oversights and misunderstandings surrounding the new rules. The applications are hugely significant for all the patients involved and, for many, this represents their only chance of having their own genetic child,' he said.

Examining each case individually, Justice Morgan found in favour of 14 of the 15 applicants, largely due to their Article 8 rights (the right to family life) under the Human Rights Act 1998 being engaged. In one case, the couple involved had not originally consented to an embryo being stored, but one had been stored accidentally and they now wished to use it.

'There was never, in their case, a consent to renew. 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 said.