More than a dozen fertility patients have won a high court battle to save their embryos, eggs and sperm from destruction after errors meant they did not renew consent to store them within the 10-year window required by law.
Ruling that the material could be kept, the judge said they should not “have the possibility of parenthood … removed by the ticking of a clock”.
Lawyers for 15 groups affected by the errors – some of them former cancer patients – asked the court in London to declare it would be lawful for the embryos or cells to remain in storage, despite the consent expiring in June last year. In some cases this was because fertility clinics failed to notify those affected.
In an unusual situation, the move was unopposed, with no objections from the clinics, the Human Fertilisation and Embryology Authority or the health secretary.
Mrs Justice Morgan ruled that it would be lawful in 14 of the 15 cases for the material to continue to be stored and used. She said laws around human fertilisation and embryology were “unbending” but “the rigidity of the scheme is not rigidity for its own sake”.
She continued: “It is surely consent that is important, not consent by an immutable date. I find 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.”
Under the law, fertility clinics need written consent from clients every decade to continue storing biological material. The rules are intended to prevent cells being kept or used without people’s knowledge or permission.
Owing to delays and issues accessing fertility treatment during the pandemic, the law allowed for a two-year extension, meaning people using the service on 1 July 2020 were granted extra time.
Confusion caused by the extension meant some clinic users were not notified when they needed to renew consent, so it lapsed.
In the one case where the judge ruled against, the circumstances were legally different. Morgan said the pair involved had not originally consented to an embryo being stored but one had been retained accidentally and they now wished to use it.
She said: “There was never, on their case, a consent to renew. To be permitted to take advantage of the storage of the embryo which they say ‘contradicted’ their express wishes because the clinic acted on the wrong consent form to change their mind is not in my judgment renewing consent. It is a change of consent.”
