The man froze seven vials of sperm prior to receiving cancer treatment in 2011, he subsequently married but then his cancer returned and he died last year. He had consented to the use of his sperm in intrauterine insemination treatment (IUI), although had not specifically consented the creation of embryos using his sperm via IVF (a requirement under the Human Fertilisation and Embryology Act 1990). His widow wishes to use the sperm samples for IVF treatment, due to the higher success rate and ability to use the limited quantity of sperm more conservatively.
The man's will specified that his sperm should be made available to his widow for 'as long as possible and for as long as she may wish'. The Guardian reported that Morag Ross QC representing the man's widow, argued this wording tells us 'all we need to know.' However, lawyers for the Human Fertilisation and Embryology Authority (HFEA) stated they cannot conclude the appropriate consent has been given in accordance with the requirements of the 1990 Act which governs consent requirements for fertility treatments.
This is the first case of its kind to be heard by the Scottish courts, and as such there is no previous precedent for the court to follow. Similar decisions in the English court system however, have allowed the posthumous use of sperm to create embryos, despite the absence of express consent as required by the 1990 Act.
In a 2018 case the Court of Protection allowed the storage and use of an incapacitated man's sperm in the treatment of his wife, in the absence of written consents because the couple had already had appointments and were planning to begin IVF together. In a 2014 case the High Court allowed a widow to keep her deceased husband's sperm beyond the consented storage period, as to forbid this would be incompatible with Article 8 of the Human Rights Act, and the right to a private and family life.The Scottish court is expected to reach a decision in the next few weeks, which could set an important precedent for the posthumous use of gametes in Scotland.