Posthumous Consent for IVF Treatment: SB v University of Aberdeen and Others [2020] CSIH 62

Introduction

The case of SB v University of Aberdeen and Others [2020] CSIH 62 addresses the intricate legal question of posthumous consent for the use of stored gametes in IVF (in vitro fertilisation) treatments. The petitioner, SB, sought to utilize her late husband JB's stored sperm for IVF, despite the absence of explicit consent forms authorizing such use. This case examines whether JB's will, combined with incomplete consent forms, suffices to grant the necessary consent under the Human Fertilisation and Embryology Act 1990 (HFEA 1990).

Summary of the Judgment

The Scottish Court of Session, Inner House, delivered a comprehensive opinion led by Lady Dorrian. The court concluded that JB's will provided sufficient consent for the storage and use of his gametes in IVF treatment. Despite the lack of a fully completed consent form specific to IVF, the court found that the combination of JB's will and the partially completed forms met the statutory requirements for effective consent under Schedule 3 of the HFEA 1990. Consequently, the court granted the orders sought by SB, allowing the use of JB's stored sperm for IVF treatments beyond the standard storage period.

Analysis

Precedents Cited

The judgment references In re Warren [2015] Fam. 1, which underscores the necessity for written consent and a medical opinion when storing gametes beyond ten years. This precedent was pivotal in shaping the court's understanding of consent requirements for long-term storage and posthumous use of gametes. Additionally, the court implicitly relied on the legislative framework established by the HFEA 1990, particularly Schedule 3, which delineates the consent process for using gametes and embryos in reproductive treatments.

Legal Reasoning

The court's legal reasoning hinged on interpreting the scope of consent provided by JB's will within the framework of the HFEA 1990. The critical factors included:

Written Consent: The will served as a written document expressing JB's wishes, satisfying the requirement for written consent.
Specificity of Purpose: Although the consent forms were incomplete regarding IVF, the will explicitly directed that his sperm be made available to SB "for as long as possible," implying consent for IVF treatment.
Opportunity for Counselling: The court found that JB was given suitable opportunities for counselling both at the initial storage of his sperm and during subsequent consultations with medical professionals, ensuring informed consent.
Legislative Interpretation: The court interpreted the statutory language broadly, recognizing that the will's language about "embryology" and providing sperm to SB encompassed IVF procedures.

Furthermore, the court rejected the argument that the absence of a fully completed IVF-specific consent form rendered the consent invalid. Instead, it emphasized the holistic consideration of the will, existing forms, and the context in which JB made his decisions.

Impact

This judgment sets a significant precedent in the realm of posthumous consent for reproductive technologies. By recognizing a will as a valid instrument for consent under the HFEA 1990, the court provides clarity for future cases where explicit consent forms may be incomplete or absent. It underscores the importance of contextual and holistic interpretations of consent, potentially broadening the avenues through which consent can be validated beyond rigid procedural requirements.

Complex Concepts Simplified

1. Schedule 3 of the Human Fertilisation and Embryology Act 1990

Schedule 3 outlines the requirements for consent when using human gametes (sperm and eggs) and embryos in reproductive treatments. It distinguishes between treatments that create embryos and those that do not, specifying the necessary consent for each scenario.

2. Effective Consent

Effective consent under Schedule 3 requires that the consent be:

In writing and signed by the individual.
Specific about the purposes for which the gametes or embryos will be used.
Given after sufficient counselling and provision of relevant information.
Not withdrawn at the time of use.

Nobile Officium

A legal principle allowing courts to intervene and provide remedies in cases where the statutory scheme does not offer a remedy for the situation at hand. In this case, it pertains to the court's authority to grant consent beyond the statutory framework if necessary.

Conclusion

The judgment in SB v University of Aberdeen and Others [2020] CSIH 62 establishes a noteworthy precedent regarding posthumous consent for IVF treatments under the Human Fertilisation and Embryology Act 1990. By affirming that a will can constitute effective consent, the court provides a more flexible interpretative approach that can accommodate cases where explicit consent forms are incomplete or absent. This decision not only upholds the deceased's expressed wishes but also ensures that surviving partners can pursue reproductive treatments in emotionally challenging circumstances. Moving forward, this case will likely serve as a reference point for similar disputes, emphasizing the importance of comprehensive consent mechanisms in reproductive law.