High Court upholds patients' rights in embryo and gamete storage case

The judgment in AA and Others v (1) Human Fertilisation and Embryology Authority (HFEA), (2) The Fertility Clinics, (3) The Secretary of State for Health and Social Care (SSHSC) [2026] EWHC 317 (Fam) allows 14 out of 15 applicants to keep their gametes or embryos in storage despite errors meaning that there were gaps in formal consent.

Each of the applicants had stored their frozen embryos or gametes at a licensed fertility clinic in the UK. For some, this was part of fertility preservation prior to cancer treatment, for others, it was part of ongoing fertility treatment to found and grow a family.

The legal framework for the storage and use of embryos and gametes in England and Wales is a complex set of rules derived from various pieces of legislation and overseen by the Human Fertilisation and Embryology Authority (HFEA). To lawfully keep embryos and gametes in storage requires ongoing, valid consent.

In these cases, due to a variety of errors and oversights by both clinics and patients, consent had expired and not been renewed. When the problem was discovered, the clinics notified the applicants, who then sought legal help to avoid their stored material being destroyed.

In December 2024, LDMH Partners, acting for the 15 applicants obtained an urgent out-of-hours order to allow the continued storage of the embryos and gametes in question pending a full hearing, as reported in the Guardian. The hearing took place in October 2025, in the Family Division of the High Court, before Mrs Justice Morgan DBE.

Last week, Mrs Justice Morgan handed down her decision, in which she carefully set out the applicable legal framework and assessed each of the claims.

Mrs Justice Morgan opened by recognising the deeply personal and difficult circumstances of each of the applicants, acknowledging the juxtaposition of these situations against the highly technical legal process.

The Legal Framework

All parties agreed as to the relevant legislative framework: namely the Human Fertilisation and Embryology Act 1990 ('HFEA 1990'), as amended by the Human Fertilisation and Embryology Act 2008 ('HFEA 2008') and the Health and Care Act 2022 ('HCA 2022'), which set out provisions on donation, storage and use of gametes and embryos.

Under HFEA 1990, in order for embryos or gametes to be lawfully stored effective consent must be in place, and storage must be in accordance with that consent.

Prior to the HCA 2022, embryos or gametes could only be stored for 10 years, or 55 years where a medical practitioner certified the patient was, or was likely to, become prematurely infertile. The HCA 2022 extended the maximum storage period for all patients to 55 years, with consent to be renewed every ten years (see BioNews 1111).

The HCA 2022 also set out transitional arrangements for those whose gametes and embryos were stored under the previous regime, and whose consent would expire between 1 July 2022 and 30 June 2024 (the 'transitional period'). Clinics were required to contact these patients offering them the opportunity to renew consent before 30 June 2023, allowing one year for consent to be renewed by 30 June 2024 – failing which consent would be deemed to have been withdrawn. In addition, a two year extension to storage periods was allowed during the COVID-19 pandemic via the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) (Coronavirus) Regulations 2020 (see BioNews 1044).

The process for renewing consent is set out in the HFEA 1990. The renewal period for both gametes and embryos begins 12 months prior to the end of the consent period and ends six months after the end of the consent period. Patients must be contacted before the beginning of the renewal period. If consent is not renewed during the renewal period, it will be deemed to have been withdrawn and patients must be notified. After that it is unlawful to keep gametes in storage and the clinic is obliged to dispose of them. Embryos may be stored for a further six months (a 'cooling off period'); however, they may not be used, nor – crucially – can the patient renew consent.

Application of the Law

Mrs Justice Morgan emphasised that the regulatory regime is deliberately strict, 'permitting of no exceptions' and offering a high degree of certainty. However, she reflected that:

'It is, however, in my judgment, important to hold in mind that the protection is not directed at certainty and clarity alone or as freestanding concepts but at those concepts as they are allied to and underpin a regime of effective and informed consent to promote autonomy. To put it another way the rigidity of the scheme is not rigidity for its own sake.' (emphasis added)

She continued:

'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.' (original emphasis)

The issue for the 15 applicants in this case was that although their gametes or embryos were held in storage pending disposal, there was no mechanism within the legislative regime to renew consent in such circumstances. Critically, in most cases, consent had not been renewed due to errors or oversights by the relevant clinic and beyond the applicants' control: for example, recording an incorrect consent period, failing to follow internal protocols for consent renewal, sending paperwork to the wrong address etc.

Confusingly for many applicants, payment for storage continued to be actively pursued and collected, despite the expiry of effective consent to storage. While Mrs Justice Morgan accepted that payment for continued storage could not be a proxy for consent, she did consider payment communications when assessing the opportunity for renewal of consent.

Furthermore, in some cases, patients had not been offered extended storage they may have qualified for under the Coronavirus extension, or in cases of premature infertility under the old regime.

Application of Human Rights Act

The Human Rights Act 1998 (HRA 1998) offered the only route to allow these applicants to keep their stored embryos and gametes. Specifically, section 3(1):

'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [European Convention on Human Rights – ECHR].

Also, section 6(1):'It is unlawful for a public authority to act in a way which is incompatible with a Convention right,' in this case Article 8 which protects the (qualified) right to respect for private and family life.

The question for the court was whether an opportunity under the HFEA 1990 to consent could be 'read in', via s3(1) HRA 1998.

Drawing on Lord Rodger's words in Ghaidan v Godin-Mendoza [2004] 2 AC 557, that any meaning implied via s3(1) must 'go with the grain of the legislation' Mrs Justice Morgan concluded:

'I am satisfied that in appropriate circumstances it is possible to read in an opportunity to give renewed consent where it has not been renewed within the time allowed by statute. Whether it is appropriate to do so will be dependent on the circumstances which have resulted in that non-renewal.'

Assessing each case individually, Mrs Justice Morgan asked: 'was the applicant by reason of the particular facts and matters raised unable to renew their consent because he or she was not given a fair and reasonable opportunity to do so in accordance with the legislation'.

The HFEA and the Secretary of State for Health and Social Care did not oppose the court's approach. The court found that the Article 8 rights of all 15 applicants were engaged by the issues in the case. In 14 cases it was judged that the applicants had not been given a fair and reasonable opportunity to renew consent in accordance with the legislation, resulting in a 'significant, final and lifelong' interference with their Article 8 right.

In the only unsuccessful case, the applicants had changed their minds regarding the fate of their embryo. Mrs Justice Morgan distinguished between this situation and the other cases, finding that '[i]t would not be reading in of consent, it would be reading in a facility for a change of mind. I do not regard that as permissible or appropriate.'

The decision in AA and Others offers clarity on matters that are legally and ethically complex as well as emotionally challenging. The court's decision is a welcome one that maintains the purpose and spirit of the regulatory framework, in light of Article 8 ECHR.

On a practical note, this case underscores the need for clinics to ensure their understanding and application of the law on storage is accurate, and their processes are capable of responding to the fluid nature of obtaining and maintaining consent.