Legal Commentary - R v. Human Fertilisation and Embryology Authority, ex parte Blood

During the late 1990s and early 2000s, an unprecedented story unfolded in the UK media involving a young widow, Diane Blood, and her legal battle to bear the children of her late husband, Stephen, following his tragic death from meningitis at the age of only thirty. As the story unfolded in the media, the ethical and legal issues were explored in the courts and in academic commentaries.1 For all the controversy the case generated, the applicable law was clear and straightforward: the governing statute at the time of the case, the Human Fertilisation and Embryology Act 1990 (hereafter ‘the Act’), prohibited the storage or use of gametes without the clear written consent of the gamete provider.2 Since the Act was unambiguous, and since Stephen Blood had never given his written consent to the storage or use of his sperm, there was no possibility of the HFEA permitting treatment within the UK. The question, therefore, was whether the HFEA would authorise the removal of the sperm abroad for treatment in another EU country. Initially, they refused, so the issue became a procedural one: had the HFEA reached their decision after appropriate consideration of the various factors which they were obliged to take into account? My concern here is not to examine the points of law which were directly at stake in the case, but to identify some wider themes which have relevance beyond the case itself and examine them from a predominantly (though not exclusively) legal perspective.