National Surrogacy Week: an analysis of Jennings v HFEA [2022]

Extended feature: commentary on Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam)

To mark National Surrogacy Week (1st to 7th August), Natalie Sutherland, partner at Burgess Mee Family Law, considers recently reported cases that deal with the tricky issues arising out of surrogacy. These cases often tackle novel aspects of this modern method of family-building and so require a judge to make important decisions, which have lifelong consequences.

The first case she looks at involves Ted Jennings, a widower who wished to use the last remaining embryo created with his deceased wife’s egg and his sperm, with a surrogate. The decision, made by Mrs Justice Theis in June 2022, is the first case dealing with posthumous surrogacy.

Facts

Mr Jennings and his wife Fern-Marie Choya wanted to have a family together but when they struggled to conceive, they turned to IVF. After several failed IVF rounds and miscarriage following natural conception, Ms Choya’s fourth IVF round was successful, and she fell pregnant in November 2018 with twins. At this point the couple had one remaining embryo in storage, which they hoped to use to conceive a sibling in the future.

Sadly, Ms Choya and the twins she carried died in February 2019 following a uterine rupture at 18 weeks.

Mr Jennings wanted to use the last embryo in storage to have a family with a surrogate, which he claimed his wife would have supported.  The problem, however, was that Ms Choya had not given her written consent for Mr Jennings to use the embryo after her death with a surrogate.

The law

Schedule 3 of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”) sets out the relevant legal framework. It is a condition of every licence granted under the Act that the provisions of consent in Schedule 3 are complied with.

Paragraph 1(1) of Schedule 3 states that a consent “must be in writing” and signed by the person giving it.

Paragraph 2(1) of Schedule 3 states that a consent to the use of any embryo must specify one or more of the following purposes:

• Use in providing treatment services to the person giving consent, or the person and another specified person together;
• Use in providing treatment services to persons not including the person giving consent;
• (ba) Use for the purposes of training…; or
• Use for the purposes of any project of research.

Paragraph 3(1) states that before a person can give consent they must (a) be given a suitable opportunity to receive proper counselling and (b) be provided with such relevant information as is proper.

The Judge not only had to scrutinise this legal framework, but also had to ensure that any decision complied with the European Convention of Human Rights (“ECHR”) and the Human Rights Act 1998 (“HRA”).

Article 8 ECHR provides that (a) everyone has the right to respect for private and family life, home and correspondence and (b) there shall be no interference by a public authority with the exercise of this right except such as is in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the rights and protections of others.

Section 3(1) HRA provides that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

It was necessary for Mr Jennings to raise a human rights argument in the absence of strict written consent from Ms Choya for him to use the embryo created from her gametes after her death with a surrogate.

Issues

Written consent is the cornerstone of the UK law on fertility and failing a successful judgment in this case, Mr Jennings’ last remaining embryo created with his late wife would have had to be destroyed.

The case involved an analysis of the forms which both Mr Jennings and Ms Choya were asked to sign by the clinic.

Ms Choya was asked to complete the HFEA WT form (“Woman’s consent to treatment and storage (IVF and ICSI)”) and Mr Jennings was asked to complete the HFEA MT form (“Men’s consent to treatment and storage (IVF and ICSI)”).

The different questions in these two forms proved central to the issue of consent. In the MT form, Mr Jennings was asked “Do you consent to embryos (already created outside the body with your sperm) being used for your partner’s treatment…if you die…or if you become mentally incapacitated?”. Mr Jennings provided his consent and so, had Mr Jennings died, Ms Choya would have been entitled to use the remaining embryo in her own treatment to try to conceive a child.

However, the WT form signed by Ms Choya did not provide a similar opportunity for her to consent to a partner-created embryo being used for her partner’s treatment after her death. Whilst the WT form does ask whether the woman consents to eggs and embryos being used for training purposes in the event of death or mental incapacity, it then states under the heading “Other uses for your eggs and embryos”: “If you wish your eggs or embryos to be used in someone else’s treatment if you die or become mentally incapacitated, please speak to your clinic for more information. Depending on your circumstances, you will need to complete one of the following: WD form (Your consent to donating your eggs), ED form (Your consent to donating embryos) or WSG form (Woman’s consent to the use and storage of eggs or embryos for surrogacy)”.

Mr Jennings’ position

In his statement Mr Jennings said that it was his and Ms Choya’s intention to use their last remaining embryo with a surrogate if their last round of IVF had failed. He said that neither he nor Ms Choya appreciated the significance of the section headed “Other uses for your eggs and embryos” in the WT form. He did not recall discussing it with the clinic staff or it being drawn to his attention. No one in the clinic had raised with them that he had provided posthumous consent, but that Ms Choya had not.

Had Ms Choya been offered the WSG form, he said, she would have consented to the posthumous use of their embryo with a surrogate. His evidence was that Ms Choya was determined for them to have a child together and they had already discussed other treatment options, including surrogacy. In his statement he said:

“Fern and I did not make a specific request for an additional consent form to permit the use of our embryo in surrogacy after Fern’s death because we were caught up in the process of trying to create a life and had no reason to consider the risks or implications of Fern’s death. I note as well that the additional form was never provided to us and being expected to ask for it is unreasonable in my opinion. This is particularly the case when a separate form was not required to enable me to provide consent to posthumous use of my embryos.”

Arguments for Mr Jennings

Leading Counsel for Mr Jennings, Ms Jenni Richards QC was required to persuade the Judge that Mr Jennings could use the embryo with a surrogate notwithstanding the very important fact that Ms Choya had not given her consent to this. Her arguments were as follows:

The requirement for consent is the cornerstone of the law, not for written consent.

She argued that the legislative aim underpinning the requirement for consent is to ensure respect for individual autonomy and to give effect to the wishes of gamete donors. Whilst providing consent in writing promotes certainty, there may be other cases where there was no opportunity to provide written consent, but where evidence of the donor’s wishes could be obtained in other ways. She submitted that the strict requirement for consent to be evidenced in writing may frustrate the primary legislative objective that a donor’s wishes are respected.

The evidence before the court was that Ms Choya would have wanted Mr Jennings to be able to use the embryo with a surrogate and so the court can infer that she would have given her consent had she been given an opportunity to do so;

She argued that (i) Ms Choya had given her consent to treatment with Mr Jennings, that that consent had not been withdrawn and was not automatically revoked on her death, (ii) Ms Choya had filled out the MT form for Mr Jennings to sign, ticking the box giving his consent to her using the embryo in the event of his death, and so it could be argued that she had contemplated the use of embryos in the event of one of their deaths, (iii) they had discussed surrogacy and Ms Choya had wanted the last embryo to be used in treatment with a surrogate in the event her last IVF round was unsuccessful. This had also been discussed with the clinic and with Ms Choya’s wider family, who provided supporting statements.

Ms Choya was not given that opportunity. She argued that the only reason Ms Choya did not record her wishes in writing was because she was not given an opportunity to do so. The WT form was unclear about what steps were required to enable a man to use partner-created embryos in the event of his wife’s death.

A decision preventing Mr Jennings from being able to use the embryo in this way would constitute a very significant interference with his Article 8 rights.

The right to private life, she argued, includes the right to become a parent in the genetic sense, and whilst there was no dispute that the requirement for the consent to be in writing pursues a legitimate aim, the question for the court was whether that aim was sufficiently weighty to justify the significant interference with Mr Jennings’ rights under Article 8. The burden was on the State to establish that the interference is justified and proportionate. That interference would be disproportionate.

She argued that were his application refused, Mr Jennings would lose his only opportunity to realise his joint aim with Ms Choya to have a child together. There were no sufficiently weighty countervailing interests to justify the significant interference with his Article 8 rights; there was no conflict between individual rights, and granting the application would not undermine the core objectives of the legislative regime.

Because it is possible to read Schedule 3 of the 1990 Act to enable the evidence of consent to be provided other than in writing, s3 HRA required the court to read those provisions that way.

When reading a statutory provision through the lens of section 3 HRA, the words implied must go with the grain of the legislation. Leading Counsel argued that the construction of the consent provisions in this case did not dispense with the requirement of consent, rather it provided for the possibility of its provision in another way other than in writing in circumstances where there was clear evidence of the donor’s wishes and the only reason why it was not in writing was due to lack of opportunity.

Arguments by the HFEA

HFEA’s submissions were much more straightforward and faithful towards the legislative framework. Leading Counsel, Ms Kate Gallafent QC argued that without signed written consent, it was unlawful to use the embryo in treatment with a surrogate. Further, the requirement for written consent did not give rise to a relevant interference with Mr Jennings’ Article 8 rights, but were that incorrect, there was no basis for invoking s3 HRA as to do so would go against the grain of the legislation and beyond the powers of the court and should instead be a matter for Parliament.

In respect of the WT form, it was argued that it did not contain an equivalent provision to the MT form regarding posthumous treatment since a man could not have been treated using the embryo in storage after the death of his partner, and that this was a matter of common sense. Further, the clinic could not anticipate every situation; there was an obligation on patients as well. It was refuted that Ms Choya was not given an opportunity to consent: it was clear from the form she did sign that further options to consent existed. This form made clear that in the absence of consent the embryos would be allowed to perish, and Ms Choya would have known that a third party would need to be involved in the event of her death as Mr Jennings could not carry a child.

In terms of evidence of intention, the fact that surrogacy in the event of Ms Choya’s death was not discussed (as confirmed by Mr Jennings was the case) cannot be placed at the door of the clinic. As Ms Choya had completed the MT form for Mr Jennings and would have known about his consent to posthumous use, it is difficult to see why this was not discussed between them in the context of Ms Choya signing the WT form. Their only discussion about surrogacy was in the context of Mr Jennings and Ms Choya both being alive and so was of limited relevance to the question of posthumous consent.

In terms of the HRA, Leading Counsel argued that the obligation for written consent is a neutral rule that applies to everyone and so cannot be said to be an interference with Mr Jennings’ Article 8 rights. Mr Jennings was inviting the court to undertake a factual analysis and drawing of inferences as to intention which the court should not do given the clear legislative provisions that provide consent must be in writing.

There was no evidence that Ms Choya wanted to use the embryo in the way Mr Jennings requested, the HFEA contended, and it was not discussed between them. It could not be right to permit Mr Jennings to act in accordance with wishes which were not clear as it impacted on her autonomy. There should be a fair balance between the rights of the individual and the interests of the community, and in this case, the certainty of written consent should prevail.

Decision

Mrs Justice Theis acknowledged that the issue of consent is the cornerstone of the statutory scheme and that the law requires consent to be in writing but said that it cannot be considered in a vacuum. It is necessary to consider (a) the circumstances in which such consent was considered, (b) the information that was available and (c) what opportunity was given for that consent to be given.

She found that whilst the WT form did give prompts as to what a woman should do about providing consent to posthumous use by her partner of a partner-created embryo, the form is far from clear. She said that the patients completing the forms would need to (a) understand that “someone else’s treatment” included reference to treatment for or for the benefit of their surviving partner, (b) understand that this would require them to complete the WSG form, (c) do this at a time when they are completing many forms and (d) when they are managing and understanding the opaque terminology in the context of undertaking IVF treatment.

Mrs Justice Theis remarked that the statutory framework also requires clinics to give patients “such relevant information as is proper” and found no evidence that Ms Choya was given this information by the clinic, and that the WT form did not make clear that the term “someone else’s treatment” and the reference to the surrogacy form related to posthumous use by her partner of a partner-created embryo. As a result, she found that Ms Choya had not been given sufficient opportunity to provide written consent.

Furthermore, Mrs Justice Theis found that even had Ms Choya been given the WSG form, the way it is drafted is inapt for pure posthumous use and, therefore it would not have been apparent to Ms Choya that she needed to complete it.

Mrs Justice Theis was satisfied from the evidence that the court could infer that Ms Choya would have consented. The evidence set out that Ms Choya was adamant that the twin girls should be saved if there had to be a choice between her and the children, and so this demonstrated that she would have wanted Mr Jennings to have their children in the event of her death. She found that the reason why they had not discussed posthumous surrogacy was because it had not been raised by the clinic and it was not obvious from the forms that she was asked to sign.

Mrs Justice Theis concluded:

“Consent is a critical issue within the statutory scheme but what is important is to consider the role and purpose of consent within the statutory scheme, which is to ensure that gametes and embryos are used in accordance with the relevant person’s wishes. The reference to written consent is an evidential rule with obvious benefits of certainty but it is not inviolable where the circumstances may require the court to intervene.”

She found that Mr Jennings’ Article 8 right to respect for the decision to become a parent in the genetic sense had been interfered with and that that interference was not proportionate. Whilst the requirement for consent to be in writing pursues a legitimate aim, in the circumstances of this case, where the court has found that there was a lack of opportunity for Ms Choya to provide that consent in writing and had she been given that opportunity she would have consented, then the interference with Mr Jennings’ rights would be significant, final and lifelong.

There were no weighty countervailing factors to justify that significant interference, there was no conflict of individuals’ rights, and permitting Mr Jennings’ application would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent.

The judge held that the court can and should read down the requirement in Schedule 3 to dispense with the need for written and signed consent in the limited situation where a person has been denied a fair and reasonable opportunity in their lifetime to provide consent and there is evidence that had the opportunity been given, consent would have been provided in writing.

Conclusion

This case was a resounding success for Mr Jennings, but it was by no means an easy case to bring. The statutory framework is clear and whilst a human rights argument was required to bypass the requirement for written consent, he was aided by the unclear wording of the HFEA forms.

It is clear from this judgment that the HFEA will need to review the wording of its forms, and clinics will need to ensure that all possible scenarios of consent – both in life and in death – are discussed with patients, and the correct forms provided and completed rather than simply relying on patients to grasp the legal importance of consent at a time when they are navigating stressful fertility treatment. Patients should not be criticised for relying on the clinic to ask the right questions. The burden should fall squarely on the HFEA and the clinics to ensure that patients are given the opportunity to understand and sign the correct forms.

Getting the paperwork wrong can have devastating consequences for people wanting to create a family through assisted reproductive technology and so the stakes are understandably high. There is clearly an argument for reforming the HFE Act and simplifying the consent process, particularly in relation to posthumous conception.