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.
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.