The HFEA (Human Fertilisation and Embryology Authority) does not usually comment on the facts of individual cases. However, given the importance of the issues raised, the HFEA considers it important to clarify certain matters.
The gametes which were the subject of the recent legal proceedings were harvested following an interim order made by the Court (Mrs Justice Macur). This order was made after the Court received legally incorrect submissions about the effect of the consent provisions contained in the Human Tissue Act 2004. The HFEA was not present at the emergency hearing at which that order was made.
In his judgment on the subsequent legal proceedings brought by L against the HFEA and the Department of Health, Mr Justice Charles stated (at paragraph 161): '...I am not satisfied that it is possible to lawfully remove, or authorise the removal of, gametes from a dead person (who has not given an effective advanced consent to this).'
During the Committee stage of the Human Fertilisation and Embryology Bill in the House of Commons, an amendment to the Bill was tabled. This amendment would have provided for deemed consent on the part of a deceased man where a consultant who had been advising or treating the couple confirmed that the deceased was, at the date of death, 'either receiving treatment or receiving advice in respect of a clear and settled intention to have a child .' The Minister for Health, Dawn Primarolo MP responded to the proposed amendment as follows (Hansard, Proceedings of the Public Bill Committee 2008 COL75-83)
'The key principle of the Human Fertilisation and Embryology Act 1990 was that gametes... should be stored or used only in accordance with the wishes of the man or woman who provided them. To remove any question of doubt concerning those wishes, the Act requires that consent to storage and use of the gametes must be given in writing.'
Following this clear statement of Government policy, the amendment was withdrawn.
In his judgment, Mr Justice Charles confirmed that the Court does not have any common law powers or any inherent jurisdiction to supply a consent in connection with storage and use of gametes (paragraph 144). Storage of gametes, without effective consent to that storage, remains unlawful and a criminal offence under the 1990 Act. In the unique circumstances of this case (the harvesting and storage being initially authorised by a Court Order), the HFEA agreed not to take any regulatory action against the licensed centre involved.
The HFEA wishes to make clear that in future, it will consider all regulatory options available to it, should it become aware that any centre has stored gametes other than in accordance with the requirements of the 1990 Act.
The HFEA wishes to emphasise that where an individual wishes to ensure that gametes are available for use in treatment services after death, the only effective way of ensuring that their wishes are met is to arrange for gametes to be harvested and stored at an HFEA licensed clinic during their lifetime. The clinic will be able to ensure that appropriate counselling is available and that all relevant information is provided prior to the gametes being harvested and stored.
In October this year, the HFEA circulated a briefing note on the judgment delivered by Mr Justice Charles to all Persons Responsible for licensed centres. This note is intended for the assistance of licensed centres, and to clarify the HFEA's position on these difficult issues. The briefing note can be found at the web link.