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Cite as: 2020 SLT 1124, 2020 GWD 31-400, [2020] CSIH 62, [2020] ScotCS CSIH_62

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Glennie

Lord Woolman

[2020] CSIH 62

P273/20

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Petition

Petitioner:

against

(1) THE UNIVERSITY OF ABERDEEN, (2) NHS GRAMPIAN, (3) THE HUMAN

FERTILISATION AND EMBRYOLOGY AUTHORITY, (4) THE LORD ADVOCATE, AND

(5) THE ADVOCATE GENERAL FOR SCOTLAND

________________________

Respondents

Petitioner: M Ross QC; Morton Fraser LLP

Respondents: C O’Neill (sol adv); Brodies LLP

25 September 2020

Introduction

[1] The petitioner wishes to undergo IVF (in vitro fertilisation) treatment using the

sperm stored for her late husband at a fertility clinic at the commencement of a serious

illness. The day before his death, by which point he was unconscious, it was discovered that

the forms he had previously completed provided consent only to the use of his sperm in IUI

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(intra uterine insemination) and other similar treatments, but not IVF which involves the

creation and storage of embryos. The petitioner, following expert advice, wishes to pursue

IVF as being the most likely method of success; and for this purpose she seeks to have the

period for storage of the deceased’s gametes extended beyond the normal statutory period

of ten years. The deceased’s will contained a clause relating to the storage and use of his

sperm. The question for the court is whether in the absence of the customary consent forms

the will, either alone or in combination with the forms which the deceased had signed,

constitutes consent for the use of his sperm for IVF, as required in terms of schedule 3 of the

Human Fertilisation and Embryology Act 1990?

The statutory provisions

[2] A detailed statutory framework, principally contained in the 1990 Act and

regulations made thereunder, regulates human fertilisation and embryology. Specific

provision is made in relation to consent in the use of such material in schedule 3. A

distinction is made between consent which involves the creation of an embryo and that

which does not. Paragraph 6 provides in particular that a person’s cells or gametes cannot

be used for the creation of any embryo in vitro unless there is effective consent by that

person, and in terms of paragraph 6(4) the consent must be in addition to that provided for

the purposes of paragraph 5.

Schedule 3

[3] The relevant provisions of schedule 3, for current purposes are as follows:

Paragraph 1(1):

“A consent under this Schedule, and any notice under paragraph 4 varying or

withdrawing a consent under this Schedule, must be in writing and, subject to sub -

paragraph (2), must be signed by the person giving it.”

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Paragraph 2(1):

“A consent to the use of any embryo must specify one or more of the following

purposes –

(a) use in providing treatment services to the person giving consent, or that person

and another specified person together,

(b) use in providing treatment services to persons not including the person giving

consent,

[…]”

Paragraph 3(1):

“Before a person gives consent under this Schedule – (a) he must be given a suitable

opportunity to receive proper counselling about the implicat ions of taking the

proposed steps, and (b) he must be provided with such relevant information as is

proper.”

Paragraph 5:

“(1) A person's gametes must not be used for the purpose of treatment services [

... ] unless there is an effective consent by that person to their being so used and they

are used in accordance with the terms of the consent.

(2) A person's gametes must not be received for use for those purposes unless

there is an effective consent by that person to their being so used.

(3) This paragraph does not apply to the use of a person's gametes for the

purposes of that person, or that person and another together, receiving treatment

services.”

Paragraph 6:

“(1) A person’s gametes or human cells must not be used to bring about the

creation of any embryo in vitro unless there is an effective consent by that person to

any embryo, the creation of which may be brought about with the use of those

gametes or human cells, being used for one or more of the purposes mentioned in

paragraph 2(1)(a), (b) and (c) above.

(2) An embryo the creation of which was brought about in vitro must not be

received by any person unless there is an effective consent by each relevant person in

relation to the embryo to the use for one or more of the purposes mentioned in

paragraph 2(1)(a), (b), (ba) and (c) above of the embryo.

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(3) An embryo the creation of which was brought about in vitro must not be

used for any purpose unless there is an effective consent by each relevant person in

relation to the embryo to the use for the purpose of the embryo and the embryo is

used in accordance with those consents.

(4) Any consent required by this paragraph is in addition to any consent that

may be required by paragraph 5 above.”

Paragraph 8

“(1) A person's gametes must not be kept in storage unless there is an effective

consent by that person to their storage and they are stored in accordance with the

consent.

(2) An embryo the creation of which was brought about in vitro must not be kept

in storage unless there is an effective consent, by each relevant person in relation to

the embryo, to the storage of the embryo and the embryo is stored in accordance

with those consents”

Background

[4] The petitioner is the widow of the late JB, who died in 2019. At the onset of his

illness, JB’s doctor advised him that he should store his sperm in order to allow him to have

children later should his fertility be affected by the course of treatment upon which he was

about to embark. At that time (about 10 years ago) JB did not have a partner, and had not

met the petitioner. Accepting this advice JB attended a local fertility centre where he

provided the relevant samples. He was given various consent forms to complete. The forms

he should have been given to complete were a “GS” form, consenting to the storage of his

sperm, and a “CD” form, consenting to disclosure of identifying information. These were

the appropriate forms to be completed by men without partners but requiring long-term

storage. JB was given and did complete and sign both such forms. He was also presented

with additional forms, designed for men with a partner: an “MGI” form, for consent to the

use of his sperm in artificial insemination, and an “MT” form, for consent to treatment and

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storage, which would have included consent to IVF. The former was completed and signed,

the latter partially completed but not signed. Although the date on the MGI form is a day

before that on the GS and CD forms, it seems likely, from an affidavit of a con sultant at the

relevant clinic, that the forms were completed by JB on the date of his visit and that a

member of staff had earlier inserted the date in the MT form in preparation for that visit. It

is suggested in the affidavit that during the visit a member of staff realised, before its

completion, that the MT form was not appropriate to JB’s circumstances, hence it was left

uncompleted. The forms completed by JB did not include consent for IVF, which would

only have been included in the MT form.

[5] In succeeding years, the centre asked JB to confirm his wishes regarding the sperm

stored, and on each occasion he replied that the centre should continue to hold the semen in

store.

[6] In due course JB met and married the petitioner. He suffered a recurrence of serious

illness. During his final illness JB and the petitioner commenced fertility treatment to enable

them to have a family. They consulted their GP who referred them to a co nsultant. The

consultant, now retired, states in her Affidavit that both were fully committed to proceeding

with the treatment, and wished to use the stored sperm. They were frank about JB’s limited

life expectancy. The consultant does not recall whether any specific treatments were

discussed, but referred them back to the clinic to use the stored sperm for treatment “as the

specialist clinic saw fit”. She asked that they be seen urgently, given the state of JB’s health,

and wrote to the clinic subsequently asking for their treatment to be expedited.

[7] Meanwhile, it seems that the clinic did not apprehend the gravity of the situation and

by the time an appointment was offered, JB was receiving palliative care. At this stage it

became apparent that the only forms hitherto completed by JB were those appropriate to a

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man without a partner and that further consents were required, appropriate to someone

with a partner and to the use of IVF. By this stage JB was unconscious and unable to sign

any forms.

[8] An affidavit from the petitioner (whose veracity was not challenged) provides more

detail of the meeting with the GP and referral to the consultant. Her recollection of the

meeting with the GP makes it clear that IVF was discussed. Furthermore, the consultant

indicated that she would recommend IVF treatment rather than IUI as it was more likely to

be successful in the circumstances. The petitioner and JB understood that there is an

increased risk of twins with IVF, and considered that this would be a happy outcome. She

has no doubt that IVF was a form of treatment in the contemplation of the deceased.

[9] During JB’s last illness, and as his condition deteriorated, he discussed with his

father what he wanted to do with his estate, and specifically in respect of his stored sperm.

In consequence he had his solicitor insert a clause into his will, in the following terms:

“Human Fertilisation and Embryology

I direct my executors to ensure that my donation of sperm will be, for as long as

possible, and for as long as she may wish, available to [SB].”

[10] The appointment which had been offered to the petitioner and JB was postponed to

enable the clinic to take legal advice, it having been discovered that no additional forms

relevant to a man with a partner had been completed by the deceased and that the original

forms did not cover IVF. The medical advice to the petitioner was that her only real

prospect of having a child was by IVF but that in the absence of the relevant consent this

could not be provided.

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[11] JB’s treating consultant clinical oncologist has provided an opinion stating that JB

was likely to have experienced premature infertility or significant alteration of the gonadal

function as a result of the treatment provided to him.

[12] SB petitions this court asking it to exercise its powers under the nobile officium and

grant certain orders to allow her to use her late husband’s stored sperm for IVF treatment.

Although the matter for decision by the court at this stage is restricted t o the question of the

effect of the clause in the deceased’s will, the petition contains averments tending to suggest

that the distinction made in the legislation between IVF and other forms of treatment is “of

no materiality” and is artificial, with the suggestion that this should not prevent treatment

by IVF even where the relevant consent has not been provided. Following discussion

between parties, and with the approval of this court, a restricted hearing was fixed to

consider the single question of whether the will executed by JB (alone or in combination

with other material) was sufficient to constitute his consent to the posthumous use of his

gametes in IVF treatment.

[13] Answers have been lodged by the Human Fertilisation and Embryology Authority

(“HFEA”), NHS Grampian and the Advocate General for Scotland on behalf of the Secretary

of State for Health and Social Care ("SSHSC”). NHS Grampian has no opposition to the

grant of the petition. The SSHSC's interest in the petition is restricted to what is necessary to

defend the legislative scheme and to assist the court with its interpretation and application.

On the hypothesis that the court were satisfied that the will, alone or with completed forms,

constituted effective consent in terms of the legislation to any embryo, the creation of which

may be brought about with the use of his gametes, being stored and used in providing

treatment services to the petitioner, the granting of appropriate orders was not opposed.

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Otherwise opposition was maintained on the basis that the result would subvert the

statutory scheme.

[14] The HFEA, established under section 5 of the 1990 Act, has functions accorded to it

under section 8 of the Act. One is to provide, to such extent as it considers appropriate,

advice and information to those providing or receiving relevant treatment. It accepts that

completion of the relevant form or forms is not the only means by which effective consent

for the purposes of Schedule 3 to the 1990 Act may be given . In a case raising issues of

whether effective consent has been given there may be material sufficiently clear and

uncontroversial for it to express a positive view on compliance which clinics and individuals

may rely on. However, in cases of ambiguity the HFEA is not in a position to adjudicate on

the matter, that being an issue for the court. In the present case the HFEA:

(a) recognises that IVF treatment appears to have been in the contemplation of the

deceased;

(b) considers that effective consent was given by Mr B for his gametes to remain in

storage after his death (fulfilling the requirement for consent in Schedule 3,

paragraphs 2(2)(b) and 8(1)). That view was reached by reference to the terms of

the GS form read with the MGI form and, in particular, because the latter

contained consent to the use of his gametes in his partner's treatment (without

the creation of embryos in vitro) in the event of his death ;

used in the treatment of the petitioner (fulfilling the requirement for consent in

Schedule 3, paragraph 5). That view was reached by reference to the terms of

the MGI form together with Mr B's will;

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(d) accepts that it is appropriate to distinguish between information and

opportunities for counselling offered at the outset of JB’s illness, when his sole

purpose in storing samples was preservation of fertility, and that offered when

he and the petitioner subsequently sought treatment;

(e) accepts that there is no inconsistency between the affidavit of the consultant to

whom the GP referred JB and the petitioner, who had no recall of a discussion of

specific forms of treatment, and that of the petitioner who did have such a recall,

which the authority had no basis for challenging; but

(f) has been unable to conclude that JB gave effective consent for the purposes of

paragraph 6 of Schedule 3 to the 1990 Act, for the following reasons:

(i) the MT form was only partially completed and not signed;

(ii) the MGI form gives consent to the use of gametes in IUI or similar

treatment but without the creation of embryos in vitro; and

(iii) the will does not make any reference to the creation of embryos or more

specifically to the purpose for which the gametes may be used.

[15] However, should the court find that the requirements of paragraph 6 of Schedule 3

have been met, the Authority considers that there would be no impediment to IVF treatment

for the petitioner using her late husband's gametes.

[16] The main interest of the Authority, as with the Advocate General, was to defend the

integrity of the legislative provisions and to contest any argument that , if the will did not

provide effective consent, it might be possible for certain statutory provisions to be waived.

[17] NHS Grampian was not represented at the hearing since it did not oppose the

petition. With the court’s permission the Advocate General for Scotland was excused from

appearing at the hearing.

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[18] Submissions were made on behalf of the petitioner and the HFEA. We do not

require to rehearse them, as their essential terms will be apparent otherwise in this opinion.

Analysis and decision

Competency

[19] It might appear that the issues could have been addressed in an action for declarator.

That is true only to the extent that the agreement of parties limited the issues to be

addressed at this first hearing. However, should the court find against the petitioner there

remain other and more complex issues relating to the materiality of the statutory distinction

between IVF and other forms of treatment. Senior counsel for the petitioner submitted that

this would require examination of the whole legislative scheme and whether it afforded a

remedy for this unforeseen situation or whether there was a gap requiring the exercise of the

court’s powers under the nobile officium. In the whole circumstances we are persuaded that

the petition is competent.

The requirements of effective consent

[20] We proceed on the basis that the requirements of an effective consent to use of the

deceased’s gametes for IVF treatment are that:

(a) It must be in writing;

(b) It must be signed by the deceased;

creation of any embryo in vitro;

(d) The individual must have been given a suitable opportunity to receive proper

counselling about the implications of taking the proposed steps, and have been

provided with such relevant information as is proper; and of the consequences in

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respect of the possibility of variation or withdrawal of consent as specified in

schedule 4, paragraph 4; and

(e) It must not have been withdrawn.

In our view, the terms of the deceased’s will constitute sufficient consent to meet these

requirements. It is in writing, it is signed and it has not been withdrawn. The remaining

two conditions for effective consent relate to the opportunity for counselling and whether

the terms of the clause are sufficiently clear to provide consent for the specific form of

treatment that is involved in IVF.

[21] As to the first of these, it is clear that the deceased was, at the time of his first visit to

the clinic at the start of his illness, provided with suitable and appropriate opportunities for

counselling in respect of the steps which he was then undertaking. What is “a suitable

opportunity to receive proper counselling”, or provision of “such relevant information as is

proper” is, as is accepted by the HFEA, situation specific. The context in which the deceased

and the petitioner consulted their GP and were referred to the consultant and thus to the

fertility clinic, was one in which they were investigating the possibility of having a child in

the face of JB’s impending death. It seems clear to us, taking together the affidavits of the

consultant and the petitioner, that the terms of paragraph 3 of schedule 6 were adequately

met before the deceased signed his will about two months after being seen by the GP and

consultant. In addition, during their consultation with the consultant, the couple completed

and signed a fertility clinic “Welfare of the Child” consent form. Under the heading “we

have considered the following issues”, they ticked a box stating “Our possible need for and

the availability of independent counselling”. The form was signed by both of them. The

referral letter from the consultant to the clinic stated “The couple seem to have considered

the difficult road ahead”. The Authority accepts that treatment by IVF appears to have been

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in the contemplation of JB, and the affidavit of SB makes this clear. We consider therefore

that there was a discussion, albeit limited, about IVF which was in the circumstances

sufficient to meet the statutory requirements.

[22] The remaining issue relates to the construction of the clause in the will. It is

axiomatic that we should start by examining the plain meaning of the words in the context

in which they occur. We regard the following features as important. First, it is a

testamentary document in which JB was not only making disposition of his estate but, by

this clause, expressing his wish for the future use of his stored gametes. Second, he and his

wife had sought and been referred for treatment to en able them to have a child. Third,

although it is expressed as a direction to his executors, in reality it is an expression of his

wishes. For present purposes, we are not concerned with whether the clause could be given

testamentary effect. The only question is whether it can be construed as granting the

necessary consent. In our view there is no doubt that it can. It is the sort of provision that

would only sensibly be made by a man contemplating his death in the near future, and

seeking to make his wishes clear. The heading refers not merely to fertility but to

“embryology”. The clause itself is expressed unconditionally and in the widest terms. It

specifies that the material be “available” to SB, in other words available for her unqualified

use, thus covering the prospect of her treatment, given the known context, and meeting the

terms of paragraphs 6(2) and 2(1)(b) of the schedule. All these factors point unerringly

toward JB having given consent to IVF treatment. Consent to use of the gametes for the

purpose of IVF must impliedly include consent for the storage of any embryos thereby

created, thus meeting also the terms of paragraph 8 of the schedule.

[23] Where it is desired to store gametes for a period in excess of ten years for the

provision of treatment services there must be written consent of the donor and a medical

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opinion to the effect that that person was, or may have been likely to become, prematurely

infertile (Human Fertilisation and Embryology (Statutory Storage Period for Embryos and

Gametes) Regulations 2009, regulation 4(3)(a) and 4(3)(b); and In re Warren [2015] Fam 1).

The clause in the deceased’s will, specifying that the material be available to the petitioner

for “as long as possible”, together with the opinion of the treating oncologist as to the

deceased’s state of fertility, clearly meet these requirements.

[24] In the circumstances we are therefore minded to grant the orders sought. The precise

wording was the subject of some discussion, it being accepted that the original wording of

the orders sought in the petition was not appropriate. Following discussion between both

sides of the bar, a form of wording was suggested which we readily adopt. We will

therefore find and declare that the late JB:

(i) gave effective consent to the storage of his gametes for the purposes of

paragraphs 2(2)(b) and 8(1) of Schedule 3 to the Human Fertilisation and

Embryology Act 1990;

(ii) gave effective consent to the use of his gametes to bring about the creation of

an embryo or embryos in vitro, and to any such embryo or embryos being used for

the provision of treatment services to SB, for the purposes of paragraphs 2(1)(b) and

6(1) to 6(3) of Schedule 3 to the Human Fertilisation and Embryology Act 1990; and

(iii) gave effective consent to the storage of any embryo or embryos, the creation

of which may be brought about with the use of his gametes, for the purposes of

paragraph 8(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990,

and that such storage is subject to the statutory storage period of ten years, in terms

of section 14(4) of the Human Fertilisation and Embryology Act 1990.