Frozen embryos – consent to storage – death of the father
The sad case of Samantha Jeffries was widely reported in the press recently. It appears to be the latest in a long chain of legal decisions arising from errors in IVF treatment. Despite the fact that IVF and the storage of human tissue are some of the most highly regulated of areas of clinical practice, the combined effect of the onward march of science and the fallibility of the humans entrusted with administering the treatment continue to produce legal conundrums, to which there is no answer in the legislation.
Mrs Jeffries’ husband, a Falklands veteran, died in 2014. At the time, he and his wife were about to commence their third cycle of IVF. Whilst the consent forms completed by Mr & Mrs Jeffries provided that Mrs Jeffries could use the embryos after her husbands death, the storage period was limited to 2 years. That period expired before the treatment could be undertaken but after Mr Jeffries had died, giving no opportunity for him to consent to a longer period of storage.
The irony of the situation is that the Jeffries initially sought to provide consent to storage for 10 years but were persuaded by the clinic to reduce this to 2 years on the basis that they only had funding for IVF for that period. An Human Fertilisation and Embryology Authority (HFEA) guideline had been issued to clinics a year earlier, advising against limiting storage to the same period as funding. That guidance was overlooked or ignored by The Sussex Downs Fertility Centre, although the Centre is apparently supporting Mrs Jeffries application to the High court for permission to use the samples.
In Warren v Care Fertility Northampton  All ER (D) 65 (Mar) early last year, the High Court felt able to construe the relevant HFEA regulations in such a way as to allow the widow of a man who had died without providing the consent for use of his sperm samples in IVF after his death, to use those samples. The failure to provide consent resulted from the lack of proper advice provided by the storage clinic to the couple before the man’s death. The Right to a Family Life under Article 8 of the European Convention On Human Rights and the clear wishes of the donor prior to death overrode a restrictive interpretation of the regulations. It is to be hoped that the Court will adopt an equally humane and understanding approach when dealing with Mrs Jeffries’ application.
We have previously commented on the spate of cases relating to failures by storage clinics to properly address the need for careful checking of consent forms and the failures in storage of sperm and embryos by clinics, IVF blunders deny parents their legal status, More errors in the world of IVF, and IVF Failings III.
If you have encountered issues relating to IVF treatment, sperm or embryo storage or infertility generally, Chris Thorne, partner in the Clarke Willmott Clinical Negligence team with a specialist interest in this subject, would be happy to speak to you on 0345 209 1461 or firstname.lastname@example.org