Decision to stop export of sperm was flawed

LAW REPORT v 11 February 1997

Regina v Human Fertilisation and Embryology Authority, ex parte Blood; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Waite, Lord Justice Henry) 6 February 1997

Without his written consent, sperm could not lawfully be taken from a comatose man shortly before his death or preserved thereafter for the purpose of inseminating the dead man's wife, and the Human Fertilisation and Embryology Authority was right to refuse to allow such a procedure to take place in the United Kingdom.

But in also refusing to allow the wife to export the sperm to Belgium, the authority failed to take into account her right, under articles 59 and 60 of the EC Treaty, to receive medical treatment in another member state unless there were good public policy reasons for not allowing this to happen.

The Court of Appeal allowed an appeal by Mrs Diane Blood against the decision of Sir Stephen Brown, President of the Family Division (Law Report, 23 October 1996) who refused her application for judicial review of a decision by the authority.

The applicant and her husband Stephen were married in 1991 and towards the end of 1994 began actively trying to have a child. But in February 1995 the husband contracted meningitis, from which he died. Shortly before his death, two samples of sperm were taken by electro-ejaculation and entrusted to the Infertility Research Trust with a view to enabling the applicant to have her husband's child. But the authority, exercising its regulatory powers under the Human Fertilisation and Embryology Act 1990, declined to permit her to receive such treatment either in this country or in Belgium.

Lord Lester of Herne Hill QC, Peter Duffy and Michael Fordham (Leigh Day & Co) for the applicant; David Pannick QC and Dinah Rose (Morgan Bruce, Cardiff) for the authority.

Lord Woolf MR said that in the absence of the consent required by section 12 and Schedule 3 of the 1990 Act, Mr Blood's sperm should not have been preserved or stored. Technically, therefore, an offence had been committed by the licence holder under section 4(1)(b), but there was no question of any prosecution being brought in this case, nor could any criticism be made of the fact that storage had taken place because it had been done bona fide and in consultation with the authority in what was an unexplored legal situtation.

For this reason, the case raised issues as to the lawfulness of the use and export of sperm which would never arise again.

Section 24(4) of the 1990 Act gave the authority a discretion as to when and subject to what conditions to permit any person to whom a licence applied to export sperm in any particular case. The authority had made general directions on this subject, but that did not prevent it making a specific direction permitting export in any particular case.

The authority accepted that under articles 59 and 60 of the EC Treaty Mrs Blood as a member of the Union had a right, directly enforceable by her (and therefore part of English law), to receive medical treatment in another member state. But it contended that its refusal to allow the export of gametes did not amount to infringement of Mrs Blood's right to treatment in Belgium or elsewhere.

That approach did not make sufficient allowance for the reality of the situation. The refusal to permit the export of gametes prevented Mrs Blood having the only treatment which she wanted.

In coming to its decision the authority was required to take into account that to refuse permission to export would impede the treatment of Mrs Blood in Belgium and to ask whether in the circumstances this was justified.

Not having received the appropriate guidance on the law, the authority failed to take into account two important considerations. The first was the effect of article 59. The second was the fact that there should be no further cases where sperm was preserved without consent. The fear of creating an undesirable precedent could not apply here.

However, even taking into account EC law, the authority was not bound to decide in Mrs Blood's favour. But it must direct itself correctly as to the law. The onus was on the authority to provide reasons which met the standards set by European law.