Eighth Edition - R.3 - Human Fertilisation & Embryology Authority

HFEA guidance (cont)
Mandatory requirements (cont)
(3) (cont)
(c) P is likely at some time to have that capacity, and
(d)
the storage of the gametes is in P’s best interests.
(4) Condition C is that, at the time when the gametes are first stored, P lacks capacity to consent to
their storage.
(5) Condition D is that P has not subsequently, at a time when P has capacity to give a consent
under this Schedule–
(a)
given consent to the storage of the gametes, or
(b)
given written notice to the person keeping the gametes that P does not wish them to
continue to be stored.
(6) In relation to Scotland–
(a) references in sub-paragraphs (3) and (4) to P lacking capacity to consent are to be read
as references to P being incapable, within the meaning of section 1(6) of the Adults
with Incapacity (Scotland) Act 2000, of giving such consent,
(b)
(c)
the references in sub-paragraphs (3) and (5) to P having capacity are to be read as
references to P not being so incapable, and
that Act applies to the storage of gametes under this paragraph to the extent
specified in section 84A of that Act.
11 A person’s gametes must not be kept in storage by virtue of paragraph 9 or 10 after the
person’s death.
Interpretation of mandatory requirements
The law allows gametes to be stored without consent if the conditions met in paragraph 9 or 10,
and 11 of Schedule 3 of the HFE Act 1990 (as amended) are met.
5G
Gametes stored following the application of these paragraphs may be used only if the person from
whom they were collected gives written effective consent to their use (and has sufficient capacity
and competence to do so).
5.30 Before storing someone’s gametes without their consent, the centre should judge that the person is not
competent to consent to the storage of gametes. When assessing the competence of children and adults
to consent, the centre should follow current guidance produced by the Department of Health, the General
Medical Council and other professional bodies.
5.31 The centre should presume that it is in the child’s best interests to store gametes unless circumstances
suggest otherwise. When assessing whether it is in a child’s best interests to procure and store their
gametes, the centre should refer to the General Medical Council guidance ‘0-18 years: guidance for
all doctors’ and consider the child’s short- and long-term best interests. Consent should be sought
from the child when they reach competence.
5.32 The centre should provide written information that children and young people can read and understand
easily. This information should be given by a member of staff experienced in communicating with children.
Human Fertilisation and Embryology Authority
Guidance note | 5. Consent to treatment, storage, donation and disclosure of information
Version 1.0