In this case, the High Court decided that the right to private and family life, including the right to start a family in the future, for Ms Warren overrode the strict legal requirements of the Regulations governing freezing of gametes.
Click to access warren-judgment.pdf
It was a very sad case – Ms Warren’s partner, Mr Brewer became unwell in 2005 and a treatment of radiotherapy was decided upon. Because of the risks that this treatment could affect fertility, discussions took place and Mr Brewer and Ms Warren made the informed decision that they would both want Ms Warren to have the opportunity in the future, even if Mr Brewer were to die, to have the ability to have his child, and thus gamete samples were taken and frozen.
Ms Warren had a series of awful life events, culminating in Mr Brewer’s death in 2012. She had, very understandably, not elected to become pregnant whilst all of these awful events were occurring.
As a result of a chain of paperwork and consents, the situation arises where in accordance with the Regulations governing the freezing of gametes, the gametes would need to be destroyed by April 2015. Ms Warren wanted to keep them for longer, to have the time to grieve properly before starting a family.
This is why the law is problematic
s14 HFEA 1990 states that gametes shall not be kept in storage for longer than the statutory storage period and if stored at the end of that period shall be allowed to perish – the statuory storage period s14(3) is ten years OR a shorter period OR if specified by Regulations a longer period.
The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 give the circumstances in which that period can be longer, and one of the requirements is that the donor has consented in writing to the storage period being longer than ten years (the maximum is fifty five years).
Although Mr Brewer had signed oodles of paperwork consenting to the storage of his gametes what he had NOT been asked to sign was anything indicating that he was consenting to them being kept for longer than ten years. There is very little doubt, and the Judge was comfortably satisfied that if he HAD been asked to sign such a consent he would have done so – it was an omission, but not his fault. It just wasn’t an option he was asked or invited to consider in the Clinic’s paperwork.
So, what was left was either strict adherence to the law and the Regulations – or, as Ms Warren urged, the Court to determine that in this situation the Regulations were not compatible with her right to private and family life and in interpreting the law to do so in a way that WAS compatible with those rights.
It was plain that allowing the sample to be kept had no adverse effect on anyone, but strict adherence to the Regulations would rob Ms Warren of the chance to have the child that she and Mr Brewer had wanted. The Judge was also satisfied that the Clinic had taken steps to ensure that their paperwork for any future cases had remedied the deficiency and that this was not a floodgate case but either a unique or very rare situation and that declaring that the Clinic could and should keep the samples for a total of 55 years was the right thing to do.
A tip of the hat also to Miss Jenni Richards QC and Catherine Dobson, junior counsel, who both represented Ms Warren and supported her through this difficult process, doing so entirely free of charge.
suesspiciousminds 
Credit indeed to counsel appearing pro bono however, on the eve of the next day of action against the legal aid (lack of) funding for the criminal bar and as i sit preparing a one day pro-bono trial am undertaking tomorrow, i am starting to wonder whether pro bono is self -defeating. The powers that be will be able to say ‘ there you are’ you legal rights are being met – through charity!
Very true. I THINK that Ms Warren would probably not have qualified for legal aid even before the cuts/reforms, but I still agree.
I was astonished that she wanted to keep the gametes until she would be 75 – I’m not an expert on female reproductive capacity but that sounds a bit optimistic!
Don’t worry she can enter a surrogacy agreement and face a whole new headache, of course at the ripe old age of 75 she would be doing well to be with the child up to the age of 10.
Yes, of course, surrogacy. What a world we live in!
I had the same thought, but it seemed a bit indelicate to include it in the blog piece. It is a bit hard to fathom what the framers of the legislation were thinking when setting 55 years as the maximum, but I suppose fertility advances, and they might even have been contemplating that in the future people might go into suspended animation or something and wake up thirty years later?
When I think of the possibility of a woman ovulating at 75 I am reminded of Abe Lincoln’s explanation for the existence of the male nipple: The Almighty taking care that if by some chance a man bore a baby he could feed it!
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