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Dead son's sperm used to create grandson without consent

17 September 2018
Appeared in BioNews 967

An investigation has been launched looking into how an embryo was created from a deceased man's sperm without his consent. 

A UK couple allegedly had their son's sperm collected after his death in a motorbike incident in 2014, the Mail on Sunday reports. A urologist extracted the sperm, which was then frozen for a year before being shipped by a UK-based medical courier to a fertility clinic in California, La Jolla IVF. 

The clinic used the sperm and a donor egg to create an embryo via IVF. A surrogate carried the embryo and delivered the child – a boy – three years ago. He was born overseas but has since reportedly been living with his grandparents in the UK. 

This is thought to be the first case of a UK child being born from sperm extracted after death, rather than from a sample stored from before death. 

The fertility specialist Dr David Smotrich at the La Jolla IVF clinic performed the procedure for the couple. Dr Smotrich told the newspaper that formal consent had not been received from the couple's deceased son. The clinician said that he had not been aware that the couple had breached any UK laws. 

The couple allegedly chose to carry out the procedure overseas as they wished to have a male grandchild, Dr Smotrich said. Gender selection is permitted in the USA but it is illegal in the UK.

The posthumous use of sperm in fertility treatment is permitted in the UK if the man gave consent before his death. Several children are born each year in the UK using sperm samples obtained for fertility treatment before the man's death. In cases such as these, the Human Fertilisation and Embryology Acts 1990 and 2008 require written consent to be provided to the Human Fertilisation and Embryology Authority (HFEA). 

A spokesperson for the HFEA told BioNews: 'The giving of explicit and informed consent is a cornerstone of UK law in relation to the use of gametes in fertility treatment, and is especially important where that consent is for posthumous use, and the gamete provider is no longer able to confirm their intention in person. So we take all allegations of the non-consensual use of gametes very seriously because, if established, it may be a criminal offence.'

The spokesperson said the HFEA had contacted the Mail on Sunday and Dr Smotrich for further information, to assess the accuracy of the allegations made by the newspaper. 

'Our investigations will continue once that information has been provided,' the spokesperson said. 

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