“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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 protection of the rights and freedoms of others.”
“Interpretation of legislation (1) 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.”
“Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“In the case of gametes, centres will be legally required to remove the gametes from storage and dispose of them at the end of the renewal period.”
“if after the renewal period has ended (six months after the end of the consent period) the centre has not received either a renewal of consent or a withdrawal of consent, centres are required to take all reasonable steps to give a further ‘Notification to each person whose eggs or sperm were used to create embryo(s) that consent to storage has been withdrawn’ (NWC) to each person whose gametes were used to bring about the creation of the embryo. In these circumstances the continued storage of the embryos will remain lawful for a further period of six months from the end of the renewal period which is up to 12 months after the end of the consent period. If, before the end of the additional six-month period, the centre receives written notification of withdrawal of consent to storage of the embryo from each person notified then the embryo should be removed from storage when the last of those notices is received.”
“3.7 Cooling Off Period The law still allows an embryo to be stored when a centre receives signed written notification of withdrawal of consent from one gamete provider where the embryo is not in storage for the treatment of that gamete provider alone. In such circumstances, the centre must, as soon as possible after receiving the signed notice, give notice to each interested person. The continued storage of the embryos will be lawful for a period of 12 months from the date that the centre received the signed notice of withdrawal of consent unless the centre receives written signed consent to the destruction of the embryo from each person notified of the withdrawal. This 12-month ‘cooling off’ period must not extend beyond the end of the period for which valid consent exists.”
“Further Guidance on Consent and Calculation of Storage Periods”, noting at Section 10.6 that these provisions should be interpreted as meaning that “During this six-month period embryos cannot be used in treatment and consent to storage can no longer be renewed”.That advice is contained in the last paragraph of the section set out below: “As explained in section 3.6 above the amendments to the Act relating to renewal of consent to storage provide some modifications as to when consent to storage will be treated as withdrawn. Where patients do not renew their consent to storage before the end of the renewal period, the end of the renewal period will be treated as the date of withdrawal of consent. When gamete providers have failed to respond to statutory notices RNE and NDE to indicate whether they wish to renew or withdraw their consent to storage of their embryos, centres must then send a further statutory notice NWC. This notice is only required in these circumstances when one or both gamete providers have failed to respond to previous notices. If one gamete provider actively withdraws consent to storage of their embryos on the RE, then centres are not required to send the NWC and instead should follow their current processes for contacting and informing the other gamete provider of the withdrawal of consent to storage of the embryos created with their gametes. The ‘cooling off’ period will not apply in these circumstances because there is no longer effective consent in place. In relation to embryos in storage for treatment purposes, paragraph 11C (14) provides that storage will remain lawful for a period of six months after consent is treated as withdrawn under paragraph 11C (8) (i.e., the end of the renewal period). This must be read in conjunction with 11C (13) which requires centres, when consent is taken as withdrawn, to take all reasonable steps to give notice of the fact that consent has been taken as withdrawn to each person whose gametes were used to bring about the creation of the embryo. This additional period will come to an end before the full 6 months has elapsed if the centre receives consent to the disposal of the embryos from each person notified. There is no comparable provision for gametes. “During this six-month period embryos cannot be used in treatment and consent to storage can no longer be renewed. Centres should consider the specific circumstances of the patients in deciding whether they continue to store the embryos lawfully until the end of the six-month period, or whether to remove the embryos from storage before the end of the six-month period without receiving consent to disposal of the embryos from each person notified under 11C(13). Considerations could include whether there is a risk of legal challenge.”
“centres were legally required to remove the gametes from storage and dispose of them after the end of the Transitional Period (i.e., on1 July 2024 ) if consent is not renewed by that date.”
“centres were required to take all reasonable steps to give notice of the withdrawal to each person whose gametes were used to bring about the creation of the embryo. In these circumstances, if consent is not renewed by30 June 2024 the continued storage of the embryos will remain lawful until31 December 2024 unless, before that date, written notification of withdrawal of consent to storage of the embryo is received from each person notified. Centres will be legally required to remove the embryos from storage by31 December 2024 unless written notification of withdrawal of consent to storage of the embryo is received from each gamete provider, in which case the embryos should be removed from storage sooner. It is not possible to renew consent to storage after30 June 2024 .”
“....Consent is a critical issue within the statutory scheme but what is important is to consider the role and purpose of consent in 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 the obvious benefits of certainty but it is not inviolable where the circumstances may require the Court to intervene.”
‘The new scientific techniques which have developed since the birth of the first IVF baby in 1978 open up the possibility of creating human life in ways and circumstances quite different from anything experienced before then. These possibilities bring with them huge practical and ethical difficulties. These have to be balanced against the strength and depth of the feelings of people who desperately long for the children which only these techniques can give them, as well as the natural desire of clinicians and scientists to use their skills to fulfil those wishes. Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it.’
“24. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught by it.” “29. There is a natural human temptation to try to bend the law so as to give her what she wants and what she truly believes her husband would have wanted. But we have to resist it.”
“74 This leads on to the third matter that requires emphasis which is the need to maintain a firm distinction between those cases within the scheme, which do not rely on the ECHR, and those outside of it which must rely on the ECHR if they are to succeed. There is a clear danger of conflating these two separate categories and reading across judicial decisions which have been taken outside the scheme as if they were taken as part of the statutory regime. The list of points drawn from the authorities by Ms Fottrell (set out at para 38) demonstrates the danger of conflating, or failing to acknowledge, these two distinct routes to treatment. Insofar as, in previous reported cases, courts have taken the specific courses adumbrated in the five points in that list they have done so outside the HFEA 1990 scheme and have done so in the circumstances of a particular individual whose article 8 rights have, on the facts of a specific case, been engaged to the extent that the court has used its power under the HRA 1998 to read down, or otherwise relax, the strict provisions in HFEA 1990, Schedule 3. There is a danger in constructing such lists if it is suggested that they represent a general and accepted extension of the court’s jurisdiction for all cases, when they are no more than examples of specific approaches that a court has been prepared to take when evaluating and then, if justified, acting upon the need to avoid a breach of an individual’s rights under the ECHR in that case.”
“...the need to maintain a firm distinction between those cases within the scheme, which do not rely on the ECHR, and those outside of it which must rely on the ECHR if they are to succeed. There is a clear danger of conflating these two separate categories and reading across judicial decisions which have been taken outside the scheme as if they were taken as part of the statutory regime. The list of points drawn from the authorities by Ms Fottrell (set out at para 38) demonstrates the danger of conflating, or failing to acknowledge, these two distinct routes to treatment. Insofar as, in previous reported cases, courts have taken the specific courses adumbrated in the five points in that list they have done so outside the HFEA 1990 scheme and have done so in the circumstances of a particular individual whose article 8 rights have, on the facts of a specific case, been engaged to the extent that the court has used its power under the HRA 1998 to read down, or otherwise relax, the strict provisions in HFEA 1990, Schedule 3. There is a danger in constructing such lists if it is suggested that they represent a general and accepted extension of the court’s jurisdiction for all cases, when they are no more than examples of specific approaches that a court has been prepared to take when evaluating and then, if justified, acting upon the need to avoid a breach of an individual’s rights under the ECHR in that case”
“In Ghadian [...] it was also established that what is possible [ in section 3] goes well beyond the normal canons of literal and purposive statutory construction [...] Lord Nicholls of Birkenhead referred to the unusual and far-reaching character of the obligation: para 30. He also emphasised that it did not depend critically on the particular form of words used as to the concept: para 31. Lord Rodger too said that to attach decisive importance to the precise adjustments required to the language of the particular provision would reduce the exercise to a game: para 123. The limits were that it was not possible to go against the grain of the legislation in question (para121) or to interpret it inconsistently with some fundamental feature of the legislation.”
‘ was the applicant by reason of the particular facts and matters raised unable to renew their consent because he or she was not given a fair and reasonable opportunity to do so in accordance with the legislation’
“I specifically remember the phone call, as I had wanted to make sure that our embryos would remain in storage. This was very important to both [SS] and myself. On calling up the clinic to make the payment over the phone, I was informed that I could also make the payment online. However, I informed the clinic staff member that I was worried that I might do something wrong and would prefer to make the payment over the phone with someone. Given that I was so anxious in making sure everything was ok with the stored embryos, I specifically asked whether I needed to do anything else. The response given was ‘No, don’t worry. The payment has gone through. I’ve put a note on the Portal that you have paid for a year. You don’t need to worry.’”
“I confirmed that we have owned our mistakes and will be reporting it to HFEA.”
“The WOC forms were completed on [the clinic’s] electronic consent platform, known as Engaged MD or EMD. When patients and their partners are registered with EMD by [the clinic] we do not share their address or telephone contact details and so these details are not prefilled but are added by the person completing the assessment. When a patient seeks to change their contact details [the clinic] would issue a change of details form to capture all relevant changes and ensure that they are updated on their systems. Unfortunately, using the WOC form to alert [the clinic] to a change of address is not a usual or an acknowledged mechanism for updating contact details and staff reviewing the WOC forms would not check/ cross reference the address against the patient’s demographic data on file”
“As such, the letter dated12 May 2023 was sent to the address that [the clinic] had on its records, and as re-confirmed on5 January 2022 , namely Springwood Avenue. All letters sent in the post by [the clinic] are sent recorded delivery, however unfortunately at that time it was not the administrators’ practice to retain printouts from the franking machine as evidence of the letters being sent by recorded delivery.”
“I can confirm that this letter was not sent by the Administrative Team as they wished to confirm that they had the correct details prior to sending confidential information. This is in keeping with the enhanced confidentiality requirements we impose to ensure we are compliant with the HFEA Code of Practice”
“As I explained to [Dr Z] your consent forms were both signed for 10 years storage and since the embryo was of very good quality we froze it. Unfortunately, it looks like you have not been informed on the day of freezing, which is unfortunate and I apologise for this. I will try calling you again today and discuss the situation in more detail but also the options you have of whether you wish to keep this embryo or not. With regards to the freezing and storage bill this will be credited and you will not have to pay for it.”
“We were surprised by this as it contradicted our wishes and recollection of events and brought additional confusion and distress as the matter was very delicate for us and we thought this decision was behind us. As I understood it the clinic went ahead with storing the embryo as they were [sic] of a good quality. We have not been paying for storage all these years. There was no follow up from the clinic regarding the future of the embryos [sic] and the issue dropped from my mind”
‘if you wish to continue storing your samples you will need to pay the annual storage fee’