L and H had one child and wished to have another. H died unexpectedly and had not discussed with his wife, L, what should happen in the event of his death. Following his death a declaration was made by the High Court that the hospital could lawfully retrieve sperm from H at the request of L. The sperm was retrieved and transferred to a clinic. Thereafter, the Human Fertilisation and Embryology Authority (HFEA) asked the court to determine whether the relevant statutory provisions had been satisfied.
The central issue was whether, and if so how, gametes retrieved from a man who has not given consent can be lawfully stored pending a decision of the HFEA on whether to permit export for further storage and use. Also in issue was whether the "bright line" (absolute bar) on effective consent under the HFEA Act 1990 was compatible with Article 8 of the Human Rights Act 1998, which relates to the right to respect for private and family life. In particular, the issue was whether the need for effective consent was incompatible with L's Article 8 rights.
The court held that:
- in the absence of effective consent the court had no power to authorise retrieval or lawful storage of gametes pending a decision of the HFEA on export for further storage and use;
- at the heart of the competition between the rights of H and L was the issue of autonomy and choice and the need for effective consent to store gametes in the UK, along with its subsequent use, was not incompatible with L's Article 8 rights;
- the HFEA act sets an absolute, clear and bright line which prevents storage or use in the UK, and use in the UK, without effective consent; but
- the language of the power conferred in section 24(4) Human Fertilisation and Embryology Act 1990 when read in conjunction with the judgment on ex parte Bland enabled the authority to grant a special direction authorising storage pending a decision on export by the HFEA.