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Woman needs High Court permission to use late husband's sperm

13 December 2021
Appeared in BioNews 1125

A widow must go to the High Court for permission to use her deceased husband's frozen sperm.

Daniel Payne froze sperm in 2010 prior to undergoing chemotherapy. He and his wife Jade subsequently sought IVF treatment on several occasions but postponed each time because of his illness. In July 2019, the couple signed documents to start IVF at the John Radcliffe Hospital in Oxford, but Mr Payne's health further deteriorated and he died of a brain tumour the same year. When Mrs Payne later wanted to resume IVF it was found there was no mention of her name in the initial sperm donation documents. 

As a result, her clinic TFP Oxford Fertility is legally unable to continue treatment without permission from the High Court: 'With all situations when a potential patient approaches us for help, we provide advice on the current UK regulations which unfortunately sometimes requires a court to give permission for a clinic to support future fertility treatment.'

'In the UK, IVF is tightly regulated by the Human Fertilisation and Embryology Act 1990. Consent is a key part of the legal framework, and no licensed IVF treatment can be lawfully provided unless the necessary written consents are in place from the relevant people. Providing treatment without the required consents could be a criminal offence' they said.

'I think it's disgusting that I have to prove anything to the court. He was my husband and I want his child,' said Payne. 'I do understand the legality of not having my name on the original document. It's something Daniel thought he had taken care of but, even so, he and I have both signed documents since then and he was my husband so you'd think common sense would prevail.'

UK courts have previously given permission for sperm to be used posthumously in similar cases (see BioNews 1065). Payne has launched a fundraiser to assist with her legal fees, which has received support from the charity Brain Tumour Research. 

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