Rodgers

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Gametes: Storage, Consent and Treatment

By M E Rodgers

Copyright © 1997 M E Rodgers.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The case of Diane Blood and her wish to conceive her dead husband's child is, by now, well known. The decision by the Court of Appeal (R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687), has resulted in the clarification of certain areas of The Human Fertilisation and Embryology Act 1990. It has also left other issues unresolved, which no doubt will result in future litigation.

Facts and Decision

Mrs Blood, 32, married her husband Stephen in 1991. The couple decided to start a family in late 1994. In 1995, before any conception, Mr Blood contracted meningitis and died on 2nd March. During Mr Blood's illness Mrs Blood raised the question with the medical practitioners of taking a sample of sperm by electro ejaculation. Two such samples were taken, and the sperm preserved, whilst her husband was in a coma, and shortly before he was pronounced clinically dead. Mrs Blood sought to receive treatment to conceive using the samples. The Human Fertilisation and Embryology Authority refused consent, deeming it contrary to the Act. On judicial review, the President of the Family Division, Sir Stephen Brown, upheld the Authority's decision. Mrs Blood's appealed successfully. Whilst the Authority's decision was correct that treatment in the UK could not take place without Mr Blood's written consent, the Authority had not been advised as to the importance of EC law regarding Mrs Blood's rights to treatment in other member states. Mrs Blood had the right to be treated in Belgium with her husband's sperm unless there were good public policy reasons for not allowing this to happen.

The Authority also appeared not to have had sufficient regard to the fact that in future it would not be possible for this problem to arise because under UK law Mr Blood's sperm should not have been preserved as he had not given his written consent. If the sperm had not been preserved, it could not have been exported. The Court did not criticise the fact of preservation of the sperm in the circumstances of this case since the storage had taken place in close consultation with the Authority in a bona fide manner and in an unexplored legal situation.

The Authority had the option to reconsider the question of export of the sperm and if the matter were subject to fresh consideration the Authority would have to decide whether to allow the export or to refuse on grounds which were acceptable according to EC law.

Comment

It is a little paradoxical that the Court of Appeal can declare the keeping of Mr Blood's sperm without his consent to be unlawful, and also that treatment of Mrs Blood is unlawful under UK legislation and yet pave the way for Mrs Blood's treatment in the European Union. The Authority has subsequently authorised the exportation of Mr Blood's sperm to Belgium, where Diane Blood may receive the necessary treatment.

The court's decision in the case was based on two main areas of law - the interpretation of the Human Fertilisation and Embryology Act 1990 and the impact of European legislation permitting citizens to obtain services (including medical services) in other Member States. In considering the first issue, the court upheld the view of the High Court, that the preservation and use of the stored sperm was not permitted under the 1990 Act. This was the line taken by the Human Fertilisation and Embryology Authority, the body set up by the 1990 Act to regulate and oversee the provision of services and to grant licences to provide those services. This commentary shall focus upon the domestic law question looking at storage, treatment and the common law position that arises as a result of the decision.

1. The Statutory Provisions

In interpreting the 1990 Act, the Court of Appeal was required to consider the meaning of a small number of provisions of the legislation. Of crucial importance was s 4 (1) which provides:-

With regard to the licence referred to in this section, the licence holder must comply with certain standard conditions which are set out in s 12. Of particular relevance to Mrs Blood's case was the requirement to comply with Sched 3, which inter alia, outlines the conditions in connection with the storage of gametes. Paragraph 8 (1) states:-

A person's gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with that consent.

Schedule 3 para. 1 requires that any consent given in pursuance of the Acts provision must be written.

Consent is also relevant to the question of treatment under the Act. Schedule 3 para. 5 (1) provides:-

a. The Court of Appeal decision as to storage

Given the clarity of the above statutory provisions in respect of storage, it is difficult to see how the Court of Appeal could have come to any other conclusion. To have done so would have stretched the legislative interpretation too far. Hence, having reviewed the Act, Lord Woolf stated:-

It follows that Mr Blood's sperm should not have in fact have been preserved and stored. Technically therefore an offence was committed by the licence holder as a result of the storage.... ([1997] 2 All ER 687 at 695e),

and upheld the decision of Sir Stephen Brown at first instance. The liability in criminal law was not pursued, as the sperm had been removed and stored in good faith and in full consultation with the Authority.

b. The Court of Appeal decision as to treatment

Following on from their decision on storage, the issue of treatment was considered. It had been argued that treatment could take place using the exception to the consent requirements under s 4 (1)(b) and para 5 of Sched 3, where the couple are receiving treatment services together. Despite the fact that the Act contemplates a situation where a woman may be treated with sperm posthumously (s 28 (6)(b)), Lord Woolf found:-

the obvious difficulty in regarding a person who is dead as being treated together with someone else, means it is really not possible to regard treatment as being together for the purposes of s.4(1)(b), once the man who has provided the sperm has died. And in any event the exception to the need for written consent in the case of gametes for 'treatment together' only applies where the sperm is used at once.... (at p 697b).

The fact that the exceptions in section 4 and Schedule 3 only relate to treatment with fresh sperm were highlighted by the court, since it had already indicated that any storage of sperm would need the consent of the donor, such consent including the purpose for which storage was taking place and the question of what would happen in the event of the donor's death (Sched 3 para 2).

This reasoning on treatment raises the question of whether treatment can be provided to a man and woman together when one (and here it is assumed to be the man) is unconscious. From the obiter statements of Lord Woolf, it would appear that "treatment together" for the purposes of satisfying the Act can indeed take place during unconsciousness. At p 695j Lord Woolf stated:-

If this proposition is correct, it is suggested that it opens up a gap in the scheme established by the Act. As the Court mentioned, special procedures and safeguards exist to cover the case of a 'deceased father', which should logically apply to the 'unconscious father', particularly if the unconscious sperm donor has a poor prognosis or is in a persistent vegetative state. Section 13 (5) requires, for example, that treatment services shall not be provided unless the welfare of the child, including its need for a father, have been taken into account, where treatment is pursuant to a licence. In the case of the 'unconscious father', whilst this would seem to be a relevant consideration before providing treatment, it does not need to be taken into account, as, under the Court of Appeal's interpretation, the treatment is not being carried out pursuant to a licence. It should be noted that a contrary view on s 13 (5) has been suggested by Morgan and Lee (1990, p 145). They argue that since s 13 (5) refers back to the definition of treatment in s 2 (1) of the Act, the need for the child to have a father is a relevant factor in all cases of treatment, whether or not the treatment is being provided pursuant to a licence. Whilst there is credence in this argument, given the broad wording of s 13 (5) itself, it is submitted that this argument does not sit comfortably with the judgment of Lord Woolf who confirms that in Mr and Mrs Blood's situation 'treatment would be outside statutory control'. Surely that statutory control must be exerted by the Act itself ?

It is submitted that this is an issue which requires urgent judicial attention, or may indeed be an area for parliamentary consideration. The Court of Appeal hypothesised that there would be no more cases of the same nature as Diane Blood's - this may be so, but in clarifying the legislative provisions the court has also established the manner in which these provisions can be avoided. Women in Diane Blood's situation can, according to the Court of Appeal, simply request the removal of sperm, and request immediate treatment without breaching the law. It is suggested that this was not a course of action that was contemplated in the drafting of the Act.

c. Consent and the common law.

Whilst the interpretation of the Act has now been clarified, it can be seen that there may be an additional question mark over the legality of treatment, as Lord Woolf queries whether it is "proper" to treat Mr Blood. This reflects an issue, not argued before the Court of Appeal, but which must certainly be subject to judicial decision in the near future - the legality of the initial removal of the sperm. This point remains within the field of common law as:-

The Act does not deal with this and the propriety of the treatment involved in the taking of the sperm in this case is governed by common law principles relating to the patient's consent.

It has long been accepted that a competent adult is an autonomous being with the right to consent or refuse medical treatment. In Schloendorff v Society of New York Hospital (1914) 211 NY 215, Cardozo J stated this principle thus:

These notions of autonomy have been accepted and followed in English cases, see for example the opinions of Lord Goff in Re F (a mental patient: sterilisation) [1990] 2 AC 1 and Lord Donaldson MR in Re T (adult: refusal of medical treatment) [1992] 4 All ER 649. A problematic area is where an adult is not of sound mind, whether by reason of insanity, undeveloped mind or unconsciousness. In these situations of lack of capacity to make a decision, the common law provides a means to enable treatment to be given. Treatment may be sanctioned where "the patient is in need of treatment to preserve life or to prevent deterioration in their physical or mental health" (Re F (a mental patient's sterilisation)) [1990] 2 AC 1. Treatment will therefore be permissible under common law, if it is necessary, and in the patient's best interests. The action "must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person" (per Lord Goff in Re F at p 75).

In the situation of Mr Blood, or indeed any other unconscious male patient, it must be questioned whether the electro ejaculation of sperm serves any of the purposes for authorising treatment under the common law. The treatment does not, at first sight, satisfy the idea of preventing deterioration of health, whether this is physical or mental. Neither does it appear to be in the patient's best interests, although the preservation of the patient's gene pool may, on a very wide interpretation, fall into the best interests scenario. Aside from this interpretation, it is hard to envisage how the best interests test could be satisfied, especially if the patient has a poor prognosis. The courts are not afraid of authorising treatment if a patient is incapable of consenting where the benefit is less tangible. In the case of Re Y (14 June 1996, High Ct Fam Div, considered in 1996 Med L Rev 204) the court permitted bone marrow harvesting from a severely mentally and physically disabled woman to treat her sister. In giving the declaration the court held that the best interests of the donor were met by the medical intervention. This was due to the emotional, psychological and social benefits to the donor since the death of the donee would have had detrimental consequences on their mother with perceived detrimental knock on effects to the donor.

Whilst Re Y does suggest that non-therapeutic procedures may be carried out on the mentally incapable, the court went beyond a purely medical consideration and looked at psychological benefits. However, a distinction can be drawn between this type of case and the hypothetical sperm removal case, in that in the former, the patient was held to benefit, mentally and emotionally from the visits of her relatives. Would this be so if the sperm donor was likely to die or remain in a coma or persistent vegetative state? It is suggested that this is stretching the legal reasoning too far and hence it would appear that if sperm were removed, it would be satisfying the best interests of the recipient as opposed to those of the patient.

In the light of this argument, it is submitted that if the legality of the removal of sperm had been raised before the court, they would have had difficulty in sanctioning the removal under the common law principles as they currently stand.

2. The Future Possibilities

A wife, in the position of Mrs Blood, but who wishes to use fresh sperm hence has to overcome the consent to remove issue and as has been suggested, this is unlikely. However, if the Law Commission's proposals as to the best interests test' (Law Com No 231) were to be implemented, the wife would have a greater chance of legitimately authorising removal of sperm. The Commission has suggested that in assessing what is in a patient's best interests regard could be held to

Under these proposals, consideration could be given to the previous wishes of the patient to conceive a child with his wife, prior to his incapacity. Clearly, some cogent evidence would be required. Mrs Blood would have benefited from this proposal as the court did discuss the evidence produced that highlighted Mr Blood's desire to have children. Unfortunately, these proposals are unlikely to be implemented in the near future, therefore for the spouse who finds themselves in this situation today, removal of sperm, regardless of evidence to indicate that it would be consented to, must fall foul of the common law provisions, and removal would be deemed unlawful.

Conclusion

Following the Court of Appeal decision in Ex parte DB, a woman cannot be treated with preserved sperm unless the man has given the requisite consents. The woman may be treated with fresh sperm, provided the man is still alive (whether unconscious or incapable) since the 1990 Act does not apply. However, in this situation, the question of consent to removal must be considered and the correct procedure under the legal provisions discussed, would be for the wife, or the doctors, to obtain a court declaration to permit the removal of sperm on the basis of it being in the male patient's best interests. The concern will be that this is not done, and that doctors will act unethically in bowing to a spouse's pressure and removing sperm. Such concerns must be addressed urgently, and practitioners should be advised on the correct procedures for removal of fresh sperm and treatment in the absence of consent. The courts should also consider setting down clear guidelines as to the approach to be taken in situations not covered by the 1990 Act with all due haste once this method of avoiding the Acts provisions is made known.

Bibliography

Law Commission No 231 (1995) Mental Incapacity (London: HMSO) HC 189 of 1994-5.

Morgan, D & Lee, R G (1991) Blackstone's Guide to the Human Fertilisation and Embryology Act 1990 (London: Blackstone Press).

United Kingdom Journals