This UK case involves a young woman (A) who died of cancer in her twenties. She cryopreserved three oocytes during a period of remission (which she later referred to as her “babies on ice”), and, at the time of storage, completed a fertility clinic consent form in which she wrote “YES” to the eggs being stored “for later use” in the event of her death, and “NO” to the eggs “being allowed to perish.” She did not specify how she wanted the eggs to be used if she died, but her clinic never asked her to give any further detail. At the time of storage (and until her death) she was single, so when she completed the form, she must have envisaged something other than her eggs being used by a partner.
After A died in 2011, her parents (Mr. and Mrs. M) wanted to try to conceive a child using the eggs (with donor sperm) who Mrs. M would carry and who would be raised as their grandchild. Mrs. M had discussed this with A on several occasions, who had told her parents that she hadn’t gone through fertility treatment for nothing and that her babies would be “safe with them.”
Strict UK laws requiring a gamete provider to give written signed consent to any specific course of treatment precluded Mr. and Mrs. M from having treatment using their daughter’s eggs in the UK. They therefore identified a fertility clinic in the US prepared to treat them and sought discretionary permission from the UK fertility clinic regulator, the Human Fertilisation and Embryology Authority (HFEA), to export the eggs. The HFEA refused the application, and Mr. and Mrs. M challenged their decision in the UK’s High Court.
At first instance, the High Court said the HFEA had reasonably concluded there was insufficient written evidence of A’s wishes, and that export should not be allowed. However, on appeal from that decision, the Court of Appeal disagreed. That court ruled that, although A had not completed the formal additional written consent forms spelling out how she wanted her eggs to be used in the UK, her wish that they not be allowed to perish was clear and all other available evidence indicated that A wanted the eggs to be used by her mother after her death. Therefore, the HFEA decision (which was premised on A’s lack of clear consent to the use of the eggs as proposed) was unreasonable, and it should be reconsidered in light of the judgment. Subsequently, the HFEA reconsidered Mr. and Mrs. M’s export application and gave permission for the eggs to be exported to the US where treatment can proceed.
This case is an incredibly sad story which highlights how important it is for anyone storing gametes to record as clearly as possible in writing what they intend to happen if they die. However, the ultimate decision also establishes that issues of consent should be looked at in context, and not just in relation to what the formal clinic paperwork says. Ultimately, that may make the law more difficult to apply, but at the same time, it upholds UK ART law’s fundamental principle of consent: that a gamete provider has the right to decide what happens to his or her sperm or eggs.