Woman wins bid for HFEA to reconsider use of her deceased daughter’s eggs

R (on the application of Mr & Mrs M) -v- Human Fertilisation and Embryology Authority [2016] EWCA Civ 611

This case concerns an application for judicial review made by Mr and Mrs M. It was made in order to challenge the decision made by the Human Fertilisation and Embryology Authority (HFEA) in refusing Mr and Mrs M’s application to export their late daughter’s eggs to the United States.

Facts

The case concerned A’s egg removal and her wishes about posthumous use. A was diagnosed with terminal cancer at 21 and wished for her eggs to be removed. A died in June 2011. Her mother wished to carry A’s children for her and for Mr and Mrs M to raise the child as grandparents.

Before A underwent the process of having her eggs removed she completed a consent form. She did not tick the box regarding a sperm donor or the use of a partner’s sperm but did agree that if she were to die she wished to have her eggs stored for later use. The HFEA failed to provide A with a ‘WD form’ which allows a person to decide what they wish to do with their eggs if they were to pass away. There was evidence to suggest A wanted her eggs to be transplanted into her mother. This evidence was supported by A having a conversation with a close friend.

The decision

In August 2014 the HFEA Committee decided to refuse to give Mr and Mrs M A’s eggs. The decision was based upon insufficient evidence of A’s intention and was, in their view, supported by the fact that A should have taken various steps in order to facilitate an intention for her eggs to be transplanted to her mother. The steps included signing necessary consent forms, seeking additional information from others about what might be involved in such arrangements, a formal discussion with the doctors involved in the treatment, having others witness her wishes and intentions, and formally noting her wishes.

Judge’s decision

The application for judicial review was successful. The judge considered that the Committee’s decision was flawed. Firstly, the Committee had misstated various aspects of the evidence – in particular, the Committee waved aside a conversation A had with her mother in which she had clearly stated her intentions. Secondly, the Committee failed to give reasons why they considered A had to have certain information before she could give effective consent to her parents’ proposed actions. Lastly, the Committee failed to determine what relevant information the HFE Act required A to have.

Comment

It is important to note that this case was brought by the way of judicial review. Judicial review challenges the way in which a decision has been made and does not overturn the original decision by the Committee – it simply quashes the decision and asks that the Committee look at the facts again. It is entirely possible that that the Committee will return the same decision; this is allowed provided the decision is made lawfully.