It was accepted at court by all (the Government, the Human Fertilisation and Embryology Authority [HFEA] and ourselves) that the Blood case had not properly clarified the relevant issues. Whilst the judgment in Blood was that a similar case should not happen again the relevant legislation was not amended to ensure that a similar situation would never arise. The current legislation (the Human Fertilisation and Embryology Act 1990) affords discretion to the HFEA to authorise the use of gametes retrieved without consent in treatment abroad having regard to the powers conferred under s24(4). It was accepted at court by the Government and the HFEA that the HFEA did have discretion to decide whether in L's case export of the gametes should be granted for treatment abroad. Similarly, it was not argued at all by the Government or by the HFEA that retrieval of the gametes was illegal or even 'of questionable legality' although the QC instructed by the HFEA similarly acted for the HFEA in the Blood case.
The point argued was that storage without consent may be illegal having regard to the terms of the 1990 Act. That is why in his judgment Mr Justice Charles made it clear that the clinic currently storing the gametes should not be prosecuted for continuing to store the gametes pending a decision of the HFEA Regulation Committee as to whether or not to authorise the export of the gametes for treatment abroad. The issue was not retrieval without consent but the storage of gametes without consent. What Mr Justice Charles said was that if storage without consent is unlawful then what would be the point of authorising retrieval of the gametes if they could not be subsequently stored. He did say that if the HFEA were to exercise its discretion to permit the storage of gametes for export then that would be a circumstance where retrieval could be permitted. However in practical terms because a man's sperm has only a short period after death in which it remains viable it would be difficult to get the Committee to approve the storage for export before the gametes were useless.
Sperm retrieval is not covered by the 1990 Act. In fact the proposed amendments to the 1990 Act would enable retrieval without consent from persons who lack capacity to consent. Then, if gametes have been retrieved without consent a Special Directions from the HFEA is then required if use is to be permitted abroad. For the first time, however, in his judgment Mr Justice Charles has sought to clarify the issue on retrieval and now states that it would be unlawful to retrieve. Before L, that was not the law.
Whilst use of gametes retrieved without consent in the UK is strictly prohibited, use of such gametes abroad is possible subject to the grant of a licence from the HFEA in this regard.
L's husband died suddenly and prematurely and the order for retrieval was made after his death. Some of the comments in the article have been deeply distressing for my client and are also misleading. The gametes were retrieved after death and therefore this was not a case of 'a patient being subjected to sperm extraction'. 'Subjected' is of course a highly emotive word and its use in this context deliberate. Would the author similarly argue that a patient who has not expressly not given consent to his organs being removed post death (which the government now proposes should be the case if organ donation is not intended) and whose organs are subsequently harvested has been 'subjected' to such harvesting?
In any event due to the circumstances of L's husband's death an extensive post mortem examination had to be carried out (and, after considerable soul searching by L, she considered that gamete retrieval would merely be a small part of the medical procedures to be carried out after her husband's death).
Mr Justice Charles has now given his judgment as regards the lawfulness of gamete extraction. It is difficult therefore to see how a case like this could arise again in the future. Should the HFEA permit the use of the gametes in treatment of L abroad no precedent will have been created.
Should L succeed in securing permission from the HFEA to export it will be a victory for not only for common sense, but primarily and most importantly for her family and her deceased husband's family (all of whom continue to support L and are equally of the view that this is what L's husband would have wanted) and will enable her to hopefully give birth to a healthy sibling for her child that both she and her husband wanted and had planned.
The author suggests a one-size-fits-all approach to the HFEA's discretionary powers - refusal. But this case is a one-off and should be treated as such. The judge considered and fully accepted the substantial evidence provided of L's husband's clearly-expressed desire that L give birth to a sibling for their child. Medical information on L has been obtained and made available and reputable clinics have accepted her as a future patient. Her ability to raise a child in a secure, supportive and loving environment has never been questioned. Nothing will be gained by destruction of the gametes.