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KembaraXtra-Case Law-R v Human Fertilisation and Embryology Authority ex p Blood (1997)
Core Principle
Core Principle
- Gametes (sperm and eggs) and embryos can only be stored and used with the donor's explicit consent.
- Mr. Blood's Situation: Sperm was extracted from Mr. Blood while he was in a coma shortly before his death and stored.
- Mrs. Blood's Request: After Mr. Blood's death, Mrs. Blood wanted to use his sperm to become pregnant.
- HFEA's Refusal: The Human Fertilisation and Embryology Authority (HFEA) denied permission because Mr. Blood had not given written consent for his sperm to be stored and used after his death.
- Judicial Review: Mrs. Blood sought a judicial review of the HFEA's decision.
- Unlawful Storage: The Court of Appeal agreed that storing the sperm without written consent was unlawful.
- HFEA's Correct Decision: The HFEA was right to refuse permission for Mrs. Blood to use the sperm in the UK.
- Written Consent is Mandatory: Schedule 3 of the Human Fertilisation and Embryology Act (HFEA) 1990 requires written consent for gamete storage and usage.
- Treatment Abroad: The Court of Appeal considered whether Mrs. Blood could take the sperm to Belgium for treatment under Article 59 of the EC Treaty (free movement of services). The case was returned to HFEA for reconsideration on this ground.
- Exportation Allowed: Despite the initial unlawful storage, the HFEA later permitted the sperm to be exported to Belgium under Section 24 of the HFEA 1990.
- Subsequent Legal Challenge: After the birth of her child(ren), Diane Blood challenged the HFEA 1990 law regarding the inability to name deceased fathers on birth certificates.
- HRA Incompatibility: Lawyers for the Health Secretary acknowledged that the HFEA 1990 was incompatible with the Human Rights Act (HRA) 1998.
- Resulting Law Reform: This case led to the Human Fertilisation and Embryology Act (HFEA) 2008, which amended the earlier legislation.
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