The man and his wife were pursuing fertility treatment when he died from cancer, but the absence of a signed consent form authorising the use of his sperm for IVF was noticed only when it was too late. However, the court was able to rely on the wording in his will to infer consent. The will stated:
'I direct my executors to ensure that my donation of sperm will be, for as long as possible, and for as long as she may wish, available to [my wife].'
The man froze his sperm before undergoing cancer treatment in 2011 but did not sign IVF consent forms because he was not in a relationship at that time. He subsequently married and sought fertility treatment with his wife, intending to use the frozen sperm. However, he died in 2019 before treatment could commence.
The legislation governing IVF is the Human Fertilisation and Embryology Act 1990 which specifies that consent to use the sperm for creation and storage of embryos (necessary for IVF) must be in writing and signed. In the absence of this signed consent, the clinic and the Human Fertilisation and Embryology Authority (HFEA) were unable to permit treatment without a statement from the court that effective consent was in place.
In her written judgment Lord Justice Clerk, Lady Dorrian concluded that the wording of the will, combined with the fact that the couple had been referred for fertility treatment was 'expressing his wish for the future use of his stored gametes'.
'It is the sort of provision that would only sensibly be made by a man contemplating his death in the near future, and seeking to make his wishes clear,' she concluded.
The wife's solicitor, James Lawford Davies of Hill Dickinson, told BioNews he was happy with the verdict but that: 'It's unfortunate that it was necessary for her to go to court in circumstances where her husband's wishes were so clear, but the legislation is very rigid and doesn't easily accommodate the complexities and tragedies of real life'.
The decision is the first of its kind made by a Scottish court and will set a precedent for future cases.