The High Court has ruled the embryos or gametes of 14 fertility patients cannot be destroyed, after clinics failed to gain the consent required for storage within the 10-year period required by law.
Fifteen applicants had asked the court to declare it was lawful for gametes or embryos to continue to be stored and to be used after written consent to storage had expired and was not renewed within the timeframes required by legislation.
One of the 15 cases heard by Mrs Justice Morgan at the Royal Courts of Justice failed, as the couple had originally asked for the embryo in storage to be destroyed but it had been retained by the clinic in error. The couple later decided to use the embryo, but the judge said as consent had never been given it could not be renewed.
The applicants were all patients whose embryos or gametes are stored by five fertility clinics, which joined the case as interested parties but did not participate in the hearing. The Human Fertilisation and Embryology Authority (HFEA) and the Secretary of State for Health and Social Care (SSHSC) also joined the case as interested parties and were represented at the hearing. None of the interested parties opposed the applications.
The legal framework surrounding the storage and use of gametes and embryos is regulated by the Human Fertilisation and Embryology Act 1990 as amended by secondary legislation, the Human Fertilisation and Embryology Act 2008 and the Health and Care Act 2022 (HCA 2022). Until the HCA 2022 came into effect, the upper time limit for which embryos or gametes could be stored was 10 years, with some limited exceptions.
HCA 2022 extended the storage period from 10 years to 55 in all cases, requiring consent to be renewed every 10 years according to detailed provisions. Withdrawal of consent, including consent deemed to have been withdrawn due to a lack of express consent, required the clinic to remove gametes and embryos from storage to be destroyed.
Clinics were required to write to patients affected by the transitional arrangements enacted by HCA 2022 by 30th June 2023 and request they renew their consent to storage before the end of the transitional renewal period – 1st July 2024. If no consent was given, clinics were legally required to dispose of the gametes by 1 July 2024, and the embryos by 31 December 2024.
Each of the 15 applicants submitted that for a range of reasons – including confusion over timescales caused by the pandemic – written consent was not lawfully renewed before the relevant periods, due to errors by the clinics or a combination of clinic and patient errors, causing it to lapse.
Mrs Justice Morgan noted:
“Each of those making applications has set out those experiences in witness statements in support of their application and I have read them carefully. Each spoke of the individual pain, distress and anxiety which they had lived through to this point. Many accounts had a quality of yearning and longing, some of desperation. I hold in my mind all that I have read and been told about those aspects.
“I hold in my mind also, the many and strong exhortations emerging from the authorities where similar issues have fallen to be determined, reminding those making the determinations that sympathy for the situation of those involved cannot be allowed to offer itself as a substitute for a proper application of the relevant law.”
After a detailed examination of each individual case, Mrs Justice Morgan said she found it “hard to conclude that Parliament intended the possibility of parenthood should be removed by the ticking of a clock, not in the cliched phrase, the ticking of the biological clock, but by the ticking of the clock beyond midnight of the day when existing consent expires whatever might be the circumstances.”
Finding for 14 of the 15 applicants, Mrs Justice Morgan said “the unbending nature of the HFEA legislation provides the protection and certainty that Parliament intended” but that “the rigidity of the scheme is not rigidity for its own sake”.
She noted:
“The legislation does not provide any mechanism for dealing with situations in which mitigating circumstances arise which may be entirely outwith a patient’s control and prevent them from renewing their consent when they would have wished to do so.”
With regard to the Article 8 rights argued by each applicant, Mrs Justice Morgan said she was satisfied they had been engaged.
“In each case their opportunity to become a parent in the genetic sense has been interfered with as a result of the fact that they are not now able to renew consent, regardless of the reasons that led to consent not having been renewed within the timeframes prescribed by legislation.”
Jonathan Whettingsteel is partner and head of family at Dutton Gregory. “This was a judgment looking at a technical interpretation of Article 8 of the Human Rights Act, the right to a family life, and it concluded the right to a family life was extended to include the storage or use of embryos to start a family,” he explained.
“The case analysed the meaning of the consent period from the Human Fertilisation and Embryology Act. The judgment provides important guidance on the consent period in respect of the storage of gametes and embryos, and in my view Mrs Justice Morgan was right in her decision to determine that the gametes and embryos of the applicants should remain in storage where consent had expired,” he continued.
“This effectively gives permission to imply consent in specific circumstances. The judge was keen to highlight that every case should be considered on its individual merits, so as to not create a precedent, but shows the importance in fertility clinics having correct procedures in place to ensure the renewal of the permissions for storage.
“This is a highly important case, and despite the Justice Morgan expressly making it clear in the early part of her judgment that this was not ‘some sort of test case’, the implications will be highly relevant to those involved in fertility law.
“The fact the HFEA and secretary of state for health and social care were involved shows the importance the case holds. This is only going to continue to be an expanding area of law, with the HFEA noting a 21% increase in egg and sperm donors between 2019 and 2022, and a 19% increase from 1,495 to 1,782 egg donors in the same period.
“Whilst this may not seem a lot, the HFEA estimates that by 2023 there will be on average between one to two donor-conceived children in every English primary school, showing an increasing upward trend.”
AA & Ors v The Human Fertilisation and Embryology Authority & Ors [2026] EWHC 317 (Fam)
