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Legal Case Presentation
Transcript of Legal Case Presentation
BMedSci Health Care Ethics and Law L v The Human Fertilisation and Embryology Association, Secretary of State for Health Claimant L seeks to:
Preserve a sample of H’s gametes (and if she cannot secure treatment here)
Have lawful authority to have those gametes exported for storage and use in clinic overseas The case -Blood – R v HFEA ex parte Blood Fam 151
-Evans v Amicus Healthcare Ltd and ors [ 2005] Fam 1 and Evans v United Kingdom (2006) 46 EHRR 34
Human Fertilisation and Embryology Act 1990
Treaty of Rome 1957
Human Rights Act 1998 Relevant case law,
Acts and Treaties Absent effective consent
Gamete retrieval not covered by the HFEA 1990
Storage and preservation of gametes absent effective consent is unlawful
(without special direction)
Lawful to export gametes under the Treaty of Rome 1957 Facts "The bases for the declarations sough by the Claimant that continued storage of H's sperm is lawful do not exist"
"HFEA and the Department are correct"
"...the issue of whether or not H's sperm can be exported for use in treatment of L is a matter decided by the HFEA as a statutory decision maker" Decision No change further than 2008 changes to Human Fertilisation and Embryology Act
Written effective consent should ALWAYS be sought
except when effective consent is absent due to death not withdrawal of consent and there is clear evidence as to this being the wishes of the deceased donor
HFEA remain the statutory decision maker Effect on law and society R v The Human Fertilisation and Embryology Authority ex parte Blood  Fam 151
Evans v Amicus Healthcare Ltd and ors  Fam 1
Evans v United Kingdom (2006) 46 EHRR 34
Human Rights Act 1998 Schedule 1, Articles 2, 8 and 14
Treaty of Rome 1957 Schedule 3, Articles 59 and 60
Human Fertilisation and Embryology Act 1990 (updated 2008). Sections 24 (4). Schedule 3, sections 4(2), 5(1), 6(1), 6(2) References 2005 - Marriage
Aug 2006 - 1st Child
June 2007 - professional advice re: IVF 26 June 2007 H's unexpected and sudden death following appendectomy
Out of hours application to Macur J - retrieval and storage of gametes 27 June 2007 Lawful surgical retrieval
Lawful storage and preservation 29 October 2007 Date set; 7 November 2007 for further directions hearing by HFEA
Retrieval, storage and use of gametes a) in the UK and b) abroad 29, 30 and 31 July 2008 Hearing Factual issues/Ambiguity “..takes one to question whether the practical effect of the 1990 Act, namely that, absent a special direction by the HFEA permitting storage for the purposes of export (or whilst a special direction on export is being considered) without effective consent, such storage would be unlawful (and a criminal offence), is an unjustified interference with the Claimant’s Treaty rights [to export goods]. If it is then the Court can, as the Claimant asks it to, declare that storage pending, and for the purposes of export, is lawful” "[the fact that] the 1990 Act makes storage without effective consent (or special direction) unlawful (and criminal) does not, and will not, preclude the HFEA from making a decision that would in practice permit the export of H's sperm, and this on that basis pending its decision H's sperm will continue to be stored and thus will be available for if, as in Blood, the HFEA decide that this should be authorised by special direction." Judge requested a guarantee that the Clinic storing the gametes would not be prosecuted by the DPP Claimant's case - Strengths and weaknesses Strengths Evidence " at least as compelling as that advanced by Mrs Blood" for storage for legal exportation and desire for another child by H Weaknesses Export is a separate and "future" point
Absent effective consent Defendant's strengths and weaknesses Strengths Cannot legalise a criminal offence Weaknesses If HFEA (and State) allow exportation in all cases and retrieval of gametes is not in their remit then the storage and preservation becomes a moot point regardless of effective consent