30 October 2017
ByAppeared in BioNews 924
In 1995, following the unexpected death of her husband Stephen, Worksop widow Diane Blood embarked on a path that would eventually result in two legal battles with British authorities; battles in which she garnered extensive public support, from which she emerged the victor. Outcomes of her case included new legislation, the Human Fertilisation and Embryology (Deceased Fathers) Act 2003.
Numerous scholarly accounts have been written about the 'Blood case' and its implications. Briefly, the facts are that following admission to the Royal Hallamshire Hospital, Sheffield in February 1995 with what was subsequently diagnosed as meningitis, Stephen aged 30, never recovered. At the time of his admission, the Bloods were actively trying for a family. When it became apparent that Stephen would not recover, Diane requested that his sperm be taken and stored so that she could carry one or more of his children at a later stage.
At the time, regulations required that a man's written consent be obtained before taking and storing sperm, although the possibility of taking sperm from a comatose man had not been considered. In the absence of a clear direction from the regulator, the HFEA (Human Fertilisation and Embryology Authority), the head of obstetrics and gynaecology at Sheffield, Professor Ian Cooke, arranged for Stephen's sperm to be taken and stored. Subsequently the HFEA confirmed that this procedure had been illegal, and when Diane sought to use the sperm in order to conceive permission was refused. Thus began the first of her legal challenges to the law and the HFEA.
Eventually the Court of Appeal decided in her favour, by referring to EU rather than UK legislation. The effect was that while she could not undergo insemination in the UK, she was free to do so elsewhere in the EU if she could find a clinic willing to offer the procedure. A clinic in Brussels agreed to treat her and her first son, Liam, was born in 1998.
However, the law prevented Diane from registering Stephen as the father of Liam or her second son Joel, who was born in 2002. Diane determined to challenge this law, and the High Court ruled that it was incompatible with the European Convention on Human Rights and the Human Rights Act. Diane subsequently wrote of her experiences in the autobiographical Flesh and Blood: The Human Story Behind the Headlines (Mainstream Publishing: Edinburgh, 2004).
The Progress Educational Trust (PET) event 'Life after Death: A Woman's Victory in Having Her Deceased Husband's Children' - held in Sheffield on 24 October 2017, and produced in partnership with the University of Sheffield and with the support of the Wellcome Trust - enabled an audience of around 200 to hear first-hand the human side of this story, from some of the key participants.
Chaired by Allan Pacey, PET trustee and professor of andrology at the University of Sheffield, the evening adopted an 'in conversation' format with a panel including Diane and Liam, Professor Ian Cooke, and Michael Fordham QC, a member of Diane's legal team and godfather to Liam and Joel.
The discussion highlighted how events took the course they did - serendipity, a willingness not to always follow the rules, and UK membership of the EU all having key roles to play. The audience also learned something of Liam's experiences growing up in the spotlight, including being 'a topic' on a GCSE syllabus and dealing with the reactions of college friends who had carried out Google searches of each other.
Asked about growing up without a father, Liam said he had always felt his father's presence despite never meeting him: 'It was never a case of I knew him and lost him, in a way he has always been there. Even though I never met him, I feel like I know who he was.'
Ian Cooke, recounting the crucial decision to take Stephen's sperm, said that he was aware of the requirement regarding written consent and sperm storage. However, he also believed that a situation like the Bloods had not been anticipated. Given a very short window in which to make a decision, the fact that the chair of the HFEA was unable to take his phone call led him to decide to go ahead anyway.
'I thought I have one chance here, it seemed rational out of sheer humanity that I should do this,' he said.
The case could always be argued later, but if the sperm was not taken in the first place, there would never be a case to argue.
It was also fortuitous that working with Ian at the time was a PhD student studying auto-ejaculation, the procedure necessary to take sperm from a comatose man.
Given the absence of Stephen's written consent, when the case came to court what was also crucial was that prior to Stephen's illness, he and Diane had read a newspaper story about another couple to whom this had happened and discussed this as a 'what if?' instance for them. Diane was able to convince the court that the outcome of this conversation provided evidence that taking his sperm accorded with his known wishes.
Michael Fordham emphasised that the UK's membership of the EU was crucial to the eventual decision since, even though UK law prevented a UK clinic from using Stephen's sperm to inseminate Diane, the procedure could be undertaken in a EU country that did not have similar restrictions to those in the UK. In the event, the Brussels clinic's ethics committee voted by a majority of one to offer her treatment.
Following Diane's experience, it is commonly assumed that nothing like this could ever occur again, as the law was clear. Debate from the audience indicated that similar, more recent requests to take sperm from men without their written consent had been refused. However, Michael Fordham threw a final spanner into the works - and a challenge to fertility clinic medical directors - by reminding the audience that Diane's case had gone only so far as the Court of Appeal. Any future instance would doubtless be heard by the Supreme Court, which could well be sympathetic.
The Progress Educational Trust would like to thank the University of Sheffield for collaborating on this event, and the Wellcome Trust for supporting this event.