So said the headline in the Guardian on 28.09.16. The bitter-sweet case of Samantha Jefferies, widely reported in the media, concerned the storage of embryos created during fertility treatment. The President’s judgment (in Re the Human Fertilisation and Embryology Act 1990 Jefferies v BMI Healthcare Ltd and HFEA [2016] EWHC 2493 (Fam)) has now been published, and can be read in full at https://www.judiciary.gov.uk/wp-content/uploads/2016/10/jefferies-final.pdf .
The judgment sets out the background to the case. Mrs Jefferies, and her late husband, Clive Jefferies, a Falklands War veteran, had been having fertility treatment, and were planning a third cycle of IVF treatment, using three embryos created and frozen several months previously. Suddenly, and unexpectedly, Mr Jefferies collapsed and died of a brain haemorrhage, before that third cycle could be completed. The President described this in his judgment as ‘an appalling and terrible shock to Samantha. She was devastated’.
Almost one year later, the fertility clinic wrote to Mrs Jefferies to say that the storage period for the embryos was due to expire in 5 months time, and they had to be used before then, although the court might be able to intervene to help. This was another horrible shock for Mrs Jefferies, who thought she and her husband had consented to storage for 10 years, and that the embryos could be used at any time during those 10 years. However, it emerged that Mr Jefferies’ Form MT (the consent form for men regarding the use and storage of sperm and embryos) had been changed to allow only 2 years storage. The amendment had not been signed or initialled by Mr Jefferies (in contrast to other amendments on the same form).
Mrs Jefferies applied to the Family Division of the High Court, under the Human Fertilisation and Embryology Act 1990, which contains detailed rules as to creation, keeping, and use of embryos. She also applied under the European Convention on Human Rights (ECHR) Article 8 (the right to respect for private and family life), claiming that limiting the period of storage to 2 years would be a disproportionate interference with her Article 8 rights. She succeeded in her application for a declaration that it is lawful for her and her late husband’s embryos to be stored for 10 years (rather than 2). Her application under the ECHR was not considered, as she had obtained the declaration, so there was no need for the court to decide the Article 8 point.
Mrs Jeffries was successful because the amendment to Form MT was not signed or initialled by her late husband, as required under 1990 Act – as the President put it, ‘the case turns on a signature’. He went on to say that:
‘26. This conclusion, it will be appreciated, is in no way dependent upon who it was who made the relevant amendment, who it was who inserted the figure “2” [to specify the maximum number of years for storage]. Even if the alteration was made by Clive, knowingly and intentionally (and I stress that the evidence does not establish this), it would be quite immaterial. The fact that the alteration was not “signed by” Clive is fatal and thus, of itself and without more ado, determinative.’
The President underlined the importance of written consent in the correct form (emphasis in bold added):
‘35. In In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, para 110, where I was considering the [Human Fertilisation and Embryology Authority] HFEA’s Forms WP and PP, used for the recording of consents under the Human Fertilisation and Embryology Act 2008, I referred to:
“the imperative need for all clinics to comply, meticulously and all times, with the HFEA’s guidance and directions, including, in particular, in relation to the use of Form WP and Form PP.”
I went on (para 111) to add:
“A completed Form WP and a completed Form PP surely needs to be checked by one person (probably a member of the clinical team) and then re-checked by another person, entirely separate from the clinical team, whose sole function is to go through the document in minute detail and to draw attention to even the slightest non-compliance with the requirements.”
36. Mr Adamson invited me to express the same observations in relation to the Form WT and Form MT. I can well appreciate why he does so. Let me make clear: what I said in In re A, paras 110-111, in relation to Form WP and Form PP applies in precisely the same way, and with exactly the same force, in relation to Form WT and Form MT’.
So, this is a powerful reminder that any necessary formalities must be scrupulously observed. In cases concerning fertility treatment, the rules are particularly stringent, given the important ethical issues raised, as well as (and notwithstanding) the powerful emotions involved.
Interestingly, in the context of the emotions inevitably stirred up in these cases, the President refers to the judge’s duty in deciding such cases by reference to the judicial oath (very much to be kept in mind in these generally turbulent times):
‘28. This does not mean that the judge must approach a case such as this bereft of humanity, empathy, compassion and sympathy. What it does mean is that the judge cannot allow his judgment to be swayed, or his decision to be distorted, by those very human emotions. After all, the duty of the judge in a case such as this, as in every case, is that demanded by the judicial oath: to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. Happily for Samantha in this case, the outcome, as determined by that stern test, is the outcome she seeks.’
None of this can change the fact of Mrs Jefferies’ painful and sudden loss of her husband, but the President’s decision (described by Mrs Jefferies in the Guardian as ‘overwhelmingly fantastic – just brilliant, amazing’) gives her a chance to have the baby they had both longed for – bitter-sweet indeed.
