CE(97)01
11 February 1997
To: All Persons Responsible
Dear Colleague
I enclose for your information a copy of a letter dated 14 February received from the Authority's solicitors which explains the Court of Appeal's judgement in the Diane Blood case as it applies to the taking, storage and use of gametes.
As you can see, the Court in its judgement has confirmed that the principle of informed written consent is an essential part of English law, and that the posthumous storage or use of sperm or eggs without such consent is unlawful in this country.
The Authority will be reconsidering Mrs Blood's request to export Mr Blood's sperm at its meeting on 27 February.
Yours sincerely
Suzanne McCarthy
Chief Executive
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Date: 14th February 1997
To: Mrs Suzanne McCarthy,Chief Executive, HFEA
Dear Suzanne
R -v- HFEA Ex Parte Diane Blood
On 6th February 1997 the Court of Appeal gave Judgment in relation to the case of Mrs Diane Blood. In doing so, the Court of Appeal clarified certain aspects of the law concerning treatment in the United Kingdom. Annexed to this letter are relevant extracts from the Court of Appeal's Judgment. Below I provide a summary of the Judgment and an analysis of the law in relation to the storage, use and taking of gametes following the Court of Appeal's Judgment.
The Judgment
The Court ruled that Mrs Blood may not lawfully be treated with the sperm of her late husband in this country. That is because Mr Blood did not give his written effective consent. Such consent is required by the Act both for storage and for use when (as here) people arc not being treated together.
The Court decided that the Members of the Authority should reconsider whether to allow Mrs Blood to export the sperm for treatment. This was principally because the Court has now clarified the law by emphasising that a person's gametes must not be stored in this country without that person's written consent. Accordingly this is a problem that cannot recur.
The Storage of Gametes
The Court of Appeal has clarified the law by emphasising that a person's gametes must not be stored in this country (whether or not for export) without that person's written effective consent (under Schedule 3 to the 1990 Act). It would be a breach of the licence conditions (and a criminal offence) for any licence holder now to store a person's gametes without the prior written effective consent of that person.
The Use of Gametes
The Court of Appeal confirmed that the exception to the need for written consent to the use of gametes for "treatment together" only applies where the sperm is used at once. The Court confirmed that it is not possible to regard a person who is dead as being treated together with someone else. The Authority has no discretion to authorise treatment in the United Kingdom in the absence of written effective consent.
The Taking of Gametes
1. Because storage is necessary for posthumous use, this means that gametes cannot again lawfully be taken from a person who is in a coma with a view to their use after that person's death.
2. Even if the gametes are not to be used after death, those involved in providing treatment services must be satisfied that the obtaining of gametes is lawful according to common law principles. In the absence of a patient's informed consent, the treatment will constitute an unlawful assault unless it can be justified as being in the patient's best interests. The Authority, in exercising its licensing jurisdiction, is entitled to have regard to breaches of the general law by a licensed centre insofar as they relate to the suitability of practices carried out at the centre.
3. Even if the taking of gametes can be justified on common law principles, gametes should not be taken if they cannot lawfully be used under the terms of the 1990 Act. The Court of Appeal's Judgment makes it clear that where preservation is involved, a written effective consent in accordance with Schedule 3 to the 1990 Act is always required. It follows that in the future gametes should not be taken if they cannot subsequently lawfully be stored and used.
Yours sincerely
Graham Miles
ANNEX
Extracts from Court of Appeal Judgment
The Storage of Gametes
Lord Woolf MR said :
"As to storage Section 4(1) makes it clear that it must always be pursuant to a licence. That means that storage can only take place lawfully in accordance with the requirements of the licence which for the present purposes are those contained in Schedule 3. This means that there must be a consent in writing (paragraph 1 and paragraph 8) which complies with paragraph 2(2) and paragraph 3 before storage can lawfully take place.
Sperm can be used fresh or after it has been preserved. Its life, if not preserved, is extremely limited, a matter of a few hours. If it is preserved then it is being stored for the purposes of the Act and therefore is subject to the requirements of a licence. This is made clear by the definition of keeping or preserving sperm contained Section 2(2). The Act therefore takes the preservation process as the beginning of storage. This is understandable since preservation involves the processing of gametes and Parliament has required that this should be done subject to the control of the licensing process. The result is that in the ordinary way no preservation can take place unless the required written consents exist".
"It follows that Mr Blood's sperm should not in fact have been preserved and stored. Technically, therefore, an offence was committed by the licence holder as a result of the storage under Section 41(2)(b) of the 1990 Act by the Licensee. There is, however, no question of any prosecution being brought in the circumstances of this case ... From now on, however, the position will be different as the proceedings will clarify the legal position. Because this Judgment makes it clear that the sperm of Mr Blood was preserved and stored when it should not have been this case raises issues as to the lawfulness of the use and export of the sperm which-should never arise again".
The Use of Gametes
"The Act clearly regards the situation where the donor of the gametes dies before their use has been one which requires special safeguards. Thus under paragraph 2(2)(b) of Schedule 3 a consent must state what is to happen to gametes if the donor dies. There are also the different provisions contained in the Act as to paternity where the father dies contained in Section 28(6). This, together with the obvious difficulty in regarding a person who is dead as being treated together with someone else, means it is really not possible to regard treatment as being together for the purposes of Section 4(l)(b), once the man who has provided the sperm has died. And in any event the exception to the need for written consent in the case of gametes for "treatment together" only applies where the sperm is used at once and so does not need to be preserved. The keeping of sperm requires written consent under Section 4(l)(b).
This means that in this case, because the effect of the Section, Mrs Blood is not entitled to rely on the exception to Section 4(l)(b) or to paragraph 5 of Schedule 3. Accordingly, the Authority and the President (of the Family Division) are correct so far as treatment in the U.K. is concerned. The absence of the necessary written consent means that both the treatment of Mr Blood and the storage of Mr Blood's sperm would be prohibited by the 1990 Act. The Authority has no discretion to authorise treatment in the U.K.
"Having established the facts so far as use in this country is concerned, all the Courts and the Authority can do is give effect to the clear language of the Act. Our decision means that, unless fresh sperm are being used, there will always be a need for written consent which complies with the Schedule. It seems therefore that in future those who are responsible who for treating a man and a woman together should take the precaution of having the necessary consent, not only to storage but also to enable that treatment to continue if the man should have misfortune to die before the sperm is sperm".
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