In EF v. Human Fertilisation and Embryology Authority, (EWHC, Nov. 22, 2024), the England and Wales High Court (Family Division) held that Article 8 (Right to respect for private and family life) of the European Convention on Human Rights gives a court discretion to look outside of written consent forms to determine a wife's wishes regarding use of embryos created with her eggs and her husband's sperm. In the case, when the wife unexpectedly died, the husband sought access to their embryo for implantation in a surrogate. Standard consent forms signed by the parties did not contemplate this situation. The court said in part:
They are each active members of the J religion which has as one of its core beliefs the sanctity of life and the divine purpose of all life forms. A priest from J religion has filed a detailed statement describing the couples’ deep faith, in particular in the context of conceiving and raising a family evidenced by her reaction when she had an earlier miscarriage. AB believed every living being has a soul and in the J religion’s belief in reincarnation, and considered the divine soul enters the embryos at the point of conception....
EF’s evidence sets out why he is certain that AB’s wish was that their jointly created embryo be used posthumously with a surrogate in the event of her death, if she had been given the chance to do so....
I am satisfied Sch 3 HFEA 1990 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Art 8. This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament.
While the court relied only on Article 8 in its decision, Applicant also argued:
In the context of Article 9 [Freedom of thought, conscience and religion]: (1) EF would be deprived of being able to honour or fulfil AB’s religious wishes for the embryo to be used in accordance with her beliefs to give the life form a chance. (2) If unused the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs....
Law & Religion UK reports on the decision, as does UK Human Rights Blog.
