High Court ruling saves fertility patients’ chance of parenthood

As the first case of its kind, the decision in AA and Others v HFEA, The Fertility Clinics and SSHSC has far-reaching implications for fertility law, informed consent, and medical malpractice liability in the private fertility sector. 

The judgment prevented the destruction of embryos, eggs and sperm where patients' written consent had lapsed after a ten-year storage window, in some cases due to clinic errors rather than any fault of the patients themselves.

So said Mrs Justice Morgan, ruling in the High Court on 16 February to allow 14 out of 15 fertility patients win a bid to save their embryos, eggs and sperm from being destroyed.

The patients’ written consent to have their embryos and gametes stored had expired after a 10 year window. In some cases, the patients had not been notified of the need to renew their consent due to clinic errors- a fallout from a two year extension allowed during the pandemic which caused confusion.

Mrs Morgan acknowledged the applicants "individual pain, distress, anxiety which they had lived through […] many accounts had a quality of yearning and longing, some of desperation". She summarised the fairness of allowing the patients to keep the material in storage as:

"I find it hard to conclude the parliament intended the possibility of parenthood should be removed by the ticking of a clock, not in the cliched phrase, the ticking of the biological clock, but by the ticking of the clock beyond midnight of the day when existing consent expires, whatever might be the circumstances."

Potential implications

This ruling is significant not only in reiterating the primacy of informed consent, but also in signalling the sympathy courts are likely to show future fertility patients should further disputes arise. As Mrs Justice Morgan's judgment makes clear, it is the substance of consent (not the mechanical ticking of a clock) that Parliament intended to protect.

For private fertility clinics, the implications are immediate and practical. Where clinic errors have contributed to a lapse in patient consent, whether through failure to notify patients of renewal deadlines or confusion arising from the pandemic's two-year storage extension, providers face heightened exposure to group litigation and regulatory scrutiny. This decision will embolden patients who have suffered similar experiences to seek legal redress, and the sympathetic judicial tone signals that courts will look closely at the conduct of clinics, not just the technical position of patients.

What providers and patients should do now

For healthcare providers, this judgment reinforces the need to:

1. Audit consent renewal processes immediately to identify any patients whose storage consents are approaching or have passed their expiry, and address any systemic failures in notification procedures.
2. Ensure adequate medical malpractice insurance is in place – as I noted in Private fertility clinics: Increasing incidents in 'very safe' sector, the private fertility sector is experiencing an increasing volume of incidents, and insurers will be scrutinising consent governance closely.
3. Take consent training seriously. The judgment adds to a growing body of case law – explored in depth in Informed consent: Where are we now? – demonstrating that courts will not regard technical compliance as a substitute for genuine, informed patient engagement.

For patients, the ruling is a reminder that continuous dialogue with your clinic is essential. If you believe your consent was not properly renewed due to clinic error, or if your material is at risk of destruction, you should seek specialist legal advice promptly.

Our view

At Browne Jacobson, we have seen first-hand how quickly consent failures – in fertility and across clinical practice – can escalate into complex, high-profile litigation. This case is unlikely to be the last of its kind. The combination of an emotionally charged patient group, systemic clinic errors, and a sympathetic judicial approach creates conditions in which group actions are a real and growing risk for providers in the private fertility sector.

Our specialist clinical negligence and healthcare teams have extensive experience representing defendants in high-profile consent cases and in managing group malpractice claims. We also offer tailored virtual consent training, designed to help healthcare organisations and clinicians reduce legal risk and improve patient outcomes before disputes arise.