Licensing

Human Fertilisation and Embryology Authority granting licence permitting testing of embryonic cell for genetic disorder and tissue type - purpose to facilitate birth of healthy child to provide cells to treat existing child - statute permitting licence

R (Quintavalle) v Human Fertilisation and Embryology Authority (Secretary of State for Health Intervening): CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice Schiemann and Mance): 16 May 2003

A couple wished to undergo in vitro fertilisation treatment (IVF) to bear a child who would be without the genetic blood disorder which affected their son, but whose tissue type would match his, so that stem cells from the blood of the umbilical cord could be used to treat him.

The authority decided in principle to grant licences to permit pre-implantation genetic diagnosis (PGD) of a cell taken from an embryo fertilised in vitro and simultaneously test it for the blood disorder and for human leukocyte antigens (tissue typing), to identify whether the embryo had the same tissue type as an existing child.

The authority decided that tissue typing would only be permitted where PGD was already necessary to avoid the passing on of a serious genetic disorder and that decisions to grant licences would be made case by case.

The authority granted a licence, limited to the specific couple, permitting PGD and tissue typing.

The claimant sought judicial review by way of an order quashing the authority's earlier decision on the grounds that tissue typing involved the use of an embryo; that the Human Fertilisation and Embryology Act 1990 did not permit such use unless authorised by licence; and that tissue typing could not be so authorised because it did not 'assist a woman to carry a child' and so did not constitute 'treatment services' within section 2 of the Act.

The judge granted the claim.

The authority appealed.

David Pannick QC and Dinah Rose (instructed by Morgan Cole, Cardiff) for the authority; James Dingemans QC and Martin Chamberlain (instructed by Coningsbys, Croydon) for the claimant; James Eadie (instructed by the Solicitor, Department of Health) for the Secretary of State for Health, intervening.

Held, allowing the appeal, that where IVF treatment was designed to ensure that a child would not suffer from genetic defects, or would not possess characteristics which might inhibit a woman from bearing a child, it could properly be described as 'treatment services' 'for the purpose of assisting women to carry children', within section 2 of the Act, and the process of cell biopsy, PGD and tissue typing as part of that treatment could be said to be designed to secure that the embryo was 'suitable' for the purpose of being placed in a woman, within schedule 2, paragraph 1(1)(d); and that, in those circumstances, the authority had power to grant a licence permitting PGD and tissue typing, subject to such conditions as it considered appropriate.