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The Family Court has granted a novel declaration in the context of a request by a fertility clinic and NHS Trust to contact an egg donor, many years after the donation, to seek her agreement to undergo genetic testing.

Donor A had, when donating, ticked a box on her donation form to indicate that she did not wish to be notified in the event that it was discovered that she had a previously unsuspected genetic disease, or was a carrier of a harmful inherited condition.

Since then, a child, AH, conceived using Donor A’s donated egg, was born with a number of health problems. The NHS Trust treating AH considered that it would be beneficial for AH’s treatment if Donor A were to undergo genetic analysis with the aim of establishing a genetic diagnosis of AH’s condition.

Accordingly, the clinic to which Donor A donated sought, with support from the Trust, a declaration that it would be lawful for the clinic to contact Donor A to request her consent to undergo testing, notwithstanding the contents of her consent form.

The Family Court considered the applicable legal framework, including the statutory framework, common law, the Human Rights Act 1998, and the UK GDPR, and examined the balance between the different interests at play. Ultimately, the Court was satisfied that any interference with the donor's consent or human rights/privacy rights would be justified and granted the declarations sought.

Ravi Mehta and Tom Lowenthal acted for the Interested Party, the Human Fertilisation and Embryology Authority, instructed by Blake Morgan LLP.

The judgment can be read here.

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