The High Court has granted a man’s application for a declaration that it was lawful for him to use an embryo created using his sperm and his late wife’s eggs in treatment with a surrogate, despite her not having given written consent.

The embryo had been created when the man and his wife had had undergone treatment at a fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA). His wife gave birth to a daughter following the treatment but, tragically, they both died unexpectedly. The man contended that the refusal to allow use of the remaining embryo amounted to an interference with his rights under Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private and family life. The HFEA opposed the application.

The couple had signed a number of forms prior to undergoing treatment. The form for consent to treatment and storage that the wife had signed did not include an option for posthumous use of embryos in treatment, but the husband was certain that her wish would have been for the embryo to be used with a surrogate. This was supported by the evidence of her family and friends. It was submitted that insistence on written consent would be a disproportionate interference with his Article 8 rights, and that Schedule 3 of the Human Fertilisation and Embryology Act 1990 could be read so as to allow consent to be provided other than in writing, where a failure to do so would result in a breach of Article 8.

The HFEA argued that the Act provided a clear and unambiguous framework for the use of embryos, which required informed written consent. It did not permit the exercise of any discretion in respect of that requirement and could not be read down to remove it. Any interference with the man’s Article 8 rights was necessary and proportionate to achieve the underlying objectives of the Act.

The Court was satisfied that the evidence pointed to the wife having consented to the embryo being used in treatment with a surrogate in the event of her death. She had not been provided with an opportunity to give such consent in writing, the Court noting that the relevant form had since been changed.

The Court took account of previous cases establishing that it was possible to read Schedule 3 to enable evidence of consent to be provided other than in writing. Granting the man’s application, the Court was satisfied that Schedule 3 should be read down in such a way in this particular case. This did not go against the grain of the legislation but supported the principle that the wishes of gamete providers should be paramount. The Court observed that there was nothing suggesting that Parliament had envisaged a situation where the only reason written consent was not given was due to the lack of an opportunity to do so.