Beginnings of Life I

Question 1

AG Ref No 3 (1994)

Answer 1

The Attorney General clarified the law in 1994 and confirmed that a fetus and embryo has no personhood until they are born.

Question 2

R v Gibson (1990)

Answer 2

Dead embryos were made into earrings, and the criminal courts found that that was an affront to public decency. So, it couldn’t be an assault and it could not be a battery because the embryos were not people, but the law was able to adapt and protect the specialness or uniqueness of those embryos.

Question 3

Re MB (1997)

Answer 3

On cesarean sections where a mother needed a cesarean section to save her child. The courts have said that even though it might be morally repugnant, the decision lies with the mother. So even if the outcome is bad for the embryo, their special status cannot trump the autonomy of the adult, the person carrying them.

Question 4

VO v France (2004)

Answer 4

What the court said they are in relation to this issue – what is the status of a fetus/embryo? – because there was so much complexity and doubt over this, this was an area best left to each states’ margin of appreciation

Question 5

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990

Answer 5

The licensing requirements are in Section 3 and in Section 4.

Anything involving the creation of an embryo (Section 3(1)), or the storage of gametes (Section 4) – the sperm or the egg – requires a license.

Question 6

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 3

Answer 6

Anything involving the creation of an embryo (Section 3(1)) requires a license

Question 7

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 4

Answer 7

Anything involving the storage of gametes requires a license.

Question 8

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 3(2)

Answer 8

Introduced in 2008. This is effectively all about cloning and the ability to genetically modify embryos. So in regards to what is allowed it puts a limit. Any non-permitted embryos cannot be placed into a woman’s body.

Genetic modifications are not currently permissible. Section 3(2).

Question 9

Human Fertilization and Embryology Authority - Code of Practice

Answer 9

You have to treat on license premises

You have to get consent (Sch. 3) from the parties involved; this is clearly an important one and we will look at the consent requirement in a bit more detail in a few minutes.

There are some onerous recording obligations as well.
So, you have to record where all the gametes come from, the consent arrangements, the information that is being given.
Recording obligations on clinics are quite onerous.

There are also obligations vis-à-vis providing information to patients, to donors, and to also, in most cases, to give the opportunity for counselling. This is a controversial process and so people involved should be able to avail themselves of counselling.

Question 10

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 41

Answer 10

To do anything which requires a license without one is a serious criminal defence – Section 41.

Question 11

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 38

Answer 11

Conscientious objection provision.

Question 12

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 -Section 13(5)

Answer 12

Allows the authority to do is to vet the family and to whom this baby will be born.

Under Section 13(5) the access questions have to ask and consider the welfare of the child to be born but also other children, existing children, of the family.

Section 13(5) includes the need for supportive parenting. That part of the provision is interpreted in the Code of Practice.

Then there are two lists: “it can either be harmed or neglect due to past or current experiences”; so the list includes previous convictions related to harming children, child protection measures taken as regards existing children, and violence were discord in the family environment – so if it is a family that argues a lot, then that could be taken into account.

It then goes on to say: “in addition to those issues indicating harm or neglect, it is also relevant to look at any inability to care for the child”– and the things listed are mental or physical conditions.

So, you can be excluded on the grounds of a physical problem.

Drug or alcohol abuse; medical history, particularly if there is an indication that the child born could suffer from that.

Or, any other circumstances which might be considered harmful to the child.

Question 13

R v Ethical Committee of St Mary’s Hospital [1998]

Answer 13

The claimant patient had a series of convictions in her past for prostitution and she was turned down for IVF treatment. So, she had convictions for prostitution. The challenge was on the grounds that this decision was not a reasonable. Remember, with judicial review it is “Wednesbury Unreasonableness”. So the challenge was on the reasonableness of the decision, but she lost. On the facts of the court was satisfied that any reasonable clinic would have made the same decision. So her challenge was through judicial review and Wednesbury Unreasonable, and she lost.

Question 14

R v SoS (ex p Mellor) [2001]

Answer 14

This was also a judicial review, but this one argued human rights. Mellor was serving a life sentence for murder. He had asked for artificial insemination in relation to his wife. So he wanted to try and have a baby through artificial insemination with his wife. The application was refused under Section 13(5). He argued that in this case that to refuse artificial insemination breached his and his wife’s Article 8 right to procreate. So, the argument squarely was on Article 8. Refusing artificial insemination meant that the Article 8 rights were offended; but the court found that one legitimate purpose of punishment was the fundamental interference with human rights. Here the ages of the two people involved were considered in the decision to deny artificial insemination, because the decision merely meant that their right to procreate was delayed. The woman was young enough that when Mellor is released from prison they could try to conceive naturally. That was relevant, because the decision merely delayed the right or chance to procreate.

Question 15

Dickson v UK [2007]

Answer 15

Very very similar facts to Mellor. The only difference was that the lady in question would have been 51 on the date of her husband’s release from prison. Initially, in the domestic case the decision went against the couple. They were again refused artificial insemination. But when the case went on appeal to the European Court of Human Rights, the court found that here the decision not to provide treatments ended their right to procreate because of their age. Effectively, they would have no further chances. So, on that factual difference the Dickson’s Article 8 rights were breached.

Question 16

R v HFEA (ex p Blood) [1997]

Answer 16

Concerned a lady named Diane Blood. Her husband fell ill and went into a coma from which he was unlikely to recover. She always wanted a family, and so did he. This had happened quite suddenly. Faced with that dilemma she convinced the hospital authorities to extract his sperm from him while he was in a coma. So his sperm was extracted and it was stored.
in terms of the HFEA that was unlawful. It was unlawful to harvest the sperm and it was also unlawful to store it. So you had an illegality here. This is precisely the type of thing that the HFEA is designed to protect against.
this was unlawful because the gentleman in question had not given written consent.
so the continued storage of the sperm while Mrs. Blood was taking her court case was also unlawful.
but, within the provision of the HFEA, the authority has discretionary power to allow the export of gametes for their use in treatment in other countries. Some would say that this is a large flaw in the whole licensing system.
Section 24 HFEA there is discretionary power that the authority has to allow export of gametes from this country for them to be used in treatment overseas.
Somewhat controversially, in the Blood case and the other case listed on the slide, the court sanctioned the use of the discretionary power by the HFEA. So, effectively in Blood what was done was illegal; the extraction of the sperm and the storage of it was unlawful. It was prohibited by the HFEA and a criminal defence was committed, but almost to get around these provisions, Mrs. Blood was able to export her husband’s sperm to Holland, and using it she had her children by him.
The husband died in the end.

The power to export lies with the Human Fertilization and Embryology Authority, so it is their decision. They have a discretionary power. So Mrs. Blood was challenging their decisions initially to refuse export. So, she challenges through the courts and she was allowed to export his firm. So this was a judicial review case.

The case is controversial. Emily Jackson refers to this as “driving the horse and coaches through the protection of the HFEA.”

Question 17

L v HFEA [2008]

Answer 17

Eventually followed Blood.

Question 18

R (IM) v HFEA [2015]

Answer 18

The latest case on the use of this discretion to get around the consent requirements is, again, a judicial review decision. If you have bought Emily Jackson’s cases and materials book she refers to this case when it was decided at first instance. It has since gone on to the Court of Appeal. Just be a bit careful with this case.

Factually what happened here: it concerned a grandmother. She is 60 now. Her daughter had died from cancer at age 28. It was a mother who wanted to be a grandmother, and her daughter unfortunately died from bowel cancer at age 28. Before she died she had some eggs frozen. The daughter had eggs frozen, and the lady in question, wanted permission to take the eggs to the United States and for them to be implanted in her so that she could carry her dead daughter’s children – hence the grandmother.

The eggs had been taken and frozen in this country. The mother, who wanted to be a grandmother, wanted to take those eggs to the United States for effectively her to be used as a surrogate – to carry the babies and effectively give birth to children that would be her grand children.

This apparently is what her daughter wanted. But her daughter had not made the appropriate written consent. So is the same as in the Blood Case, there was no formal written consent.

What she was wanting done is technically not allowed in this country. But it does happen in the United States.

So, again, the issue was could the HFEA authorize the export of the eggs to the United States for this procedure to take place given that there was no lawful consent in place? At first instance the judge felt not. He felt, and this is the black text on slide 22, that permission could be refused if it would undermine the purposes of the Act. The judge felt at first instance that that was the case, because he felt that there was no clear indication of the dead woman’s wishes. So, he felt that the HFEA was right in refusing permission to export.

The Court of Appeal slightly disagreed. They felt there could be sufficient indication of the deceased woman’s wishes. So what has happened… And it is sort of a half victory for this grandmother… She is one is Court of Appeal level, but not overall. Because the case has been sent back for the Human Fertilization and Embryology Authority to review the facts again. As far as I know there has been no decision on that. The appeal decision was just a few weeks ago, so you can Google it and it is all over the news and law reports.

Question 19

HUMAN FERTILIZATION AND EMBRYOLOGY ACT 1990 - Section 39

Answer 19

If consent given, deceased will legally be the parent of the child.

Question 20

Evans v Amicus Healthcare [2004] / Evans v UK (2007)

Answer 20

The lady in question, Natalie Evans, she had ovarian cancer. Before she embarked on treatment her and her then partner had some embryos frozen. So effectively his sperm and her eggs were fertilized – so the IVF had taken place and the freezing happened in relation to the embryos; the embryos were frozen.

The idea was that a few years down the line when they were ready to have children, if her cancer treatment made her infertile, which it did, the embryos would be there and they could use them.

Those are the basic facts.

What happened was the couple fell out in a non-amicable way. She was rendered infertile by her cancer treatment, and therefore her only chance of having children was to use these embryos which she and her partner had frozen. But because they had fallen out and things were not amicable, the guy withdrew is consent.

That was what Natalie Evans was challenging. She effectively said the need for continued consent infringed her Article 8 right to procreate.

The ECHR using this margin of appreciation argument acknowledged that the right to procreate was important, but at the same time Article 8 was also engaged for her ex-partner, because part of his Article 8 rights is not to be a parent. So, effectively her Article 8 rights were engaged, and so too were his. Which prevailed, they they said lay within each states’ margin of appreciation.

So our domestic court has favoured the partner, and the European decision said that that was acceptable.

The danger here was that the couple decided to have the IVF and freeze the embryos. Had she merely frozen her eggs than they would have been available subject to her own consent to be inseminated with somebody else’s sperm in the future. But here the embryos were frozen and his continued consent was required.

Now, following on from that case, and this was triggered by that case there was an amendment to the Human Fertilization and Embryology Act, Sch. 3(4A) – there is now a 12 month cooling off period.

Question 21

Yearworth v North Bristol NHS Trust [2009]

Answer 21

The case concerned the storage of sperm. Through the storage facility, the NHS Trust’s negligence, the sperm perished. The sperm was being stored for men who were undergoing cancer treatment, and through the NHS’s negligence the sperm perished.

What the Court of Appeal thought most appropriate was that the donors’ of gametes should have ownership rights in relation to them. So the owner, for the purposes of the law, appears to be the owner, be it of the sperm or eggs.

But there is no case about the ownership of an embryo, which would be much more complicated.

On the facts, because there are ownership rights, it meant that in the law of tort the clinic had an obligation to look after the property for the owners carefully. There is a tort Novus bailment. If you are trusted with somebody’s property you have to look after it carefully. That was applicable here.

Question 22

Section 41 HFEA 1990

Answer 22

Payments are not allowed but you can receive expenses for your donations through a licensed clinic

Question 23

Section 37 HFEA 2008

Answer 23

If it is a non-married relationship or civil partnership, then the father is still her partner provided that they both consent

Question 24

Section 44, HFEA 2008

Answer 24

If the couple involved is a lesbian couple than the partner of the woman who carries the child becomes “the second legal parent

Question 25

HFEA Schedule 2 1ZA

Answer 25

You can use it to test for an abnormality which will cause serious physical or mental disability.

Question 26

Quintavalle v HFEA [2005]

Answer 26

Saviour Sibling.

The context here is allowing people to create a new baby in order to produce genetic material with which to treat an existing older sibling who without treatment would die.

A couple already have a child, the child has a life limiting condition, and the condition could be treated perhaps with gene therapy or bone marrow donations, but it has to be from a match. There isn’t a match, so can you create a child in order to produce material to treat the existing person?

Originally this was not within the scope of the HFEA license, but that was challenged in the Quintavalle v HFEA [2005] case

Question 27

Schedule 3, Section 12 HFEA

Answer 27

Schedule 3 - consent is given and that consent must be continuous consent. In other words, it must be consent existing at all relevant times.

So, whichever clinic they go to will have got both of their consent.

Question 28

Section 31(Za) HFEA 1990

Answer 28

before 2005 there was no right to any information. So children born as a result of donated gametes have no right to find out who their biological parent is and where they came from.

There was this change following some consultation, which is now Section 31(Za) HFEA 1990

Question 29

HFEA 1990 Code of Practice para. 20.7-20.8

Answer 29

Counselling. The Code emphasizes that the child should be told as early on about their inception through donation.

Question 30

Section 24 HFEA

Answer 30

there is discretionary power that the authority has to allow export of gametes from this country for them to be used in treatment overseas.