The UK's High Court has ruled that it may have been unlawful for a widow to have removed her dead husband's sperm. Despite UK law requiring valid written consent for the storage and use of sperm, the 42-year-old widow obtained emergency Court permission to have sperm collected from her 31-year-old husband's body hours after he unexpectedly died from complications with a routine operation to remove his appendix in June 2007. She now seeks authorisation to undergo IVF abroad using his sperm. Giving the judgment, Mr Justice Charles said: 'I am not satisfied it is possible to lawfully remove sperm from a dead person who has not given effective advanced consent'.
The mother-of-one pleaded that the couple had wanted another child, discussed their desire with family and friends and had sought information regarding IVF together. She explained that they had not thought to have him provide written permission because they had not feared that the minor surgery would be fatal. While the attempt to construct retrospective consent with evidence of his intentions holds little legal weight in light of the clear statutory provisions, her lawyer also argued that disposal of his sperm would contravene her human right to establish a family (protected under article 8 of the European Convention on Human Rights, enshrined in UK law by the Human Rights Act 1998). Because fresh sperm will lose viability over time, the Court authorised the emergency sample collection pending later legal resolution. Upon closer examination at the hearing, Mr Justice Charles questioned the decision.
The final decision now resides with the Human Fertilisation and Embryology Authority (HFEA), which regulates gamete storage and its use. If permission is denied, then the HFEA decision will likely be legally challenged as was done by Diane Blood in a similar case in 1997. HFEA chair, Lisa Jardine, commented that the organisation sympathises with these 'difficult' situations but 'must operate within the legislation'.
This case, like the landmark Blood case, may turn on the statutory loophole that provides the HFEA discretionary powers to dispense with the consent requirements for the sperm to be exported - in accordance with an EU citizen's right to receive health treatment in another member state.
Diane Blood ultimately won a protracted legal battle through the English Courts in 1997 and was able to conceive two sons using her late husband's sperm. The Bloods attempted to start a family but Stephen Blood contracted meningitis and lapsed into a coma - his sperm was collected shortly before he died in 1995. The HFEA refused Mrs Blood authorisation to use the sperm as she did not have written consent from her husband. The High Court upheld the authority's decision because the HFE Act does not provide discretionary powers to waive domestic consent requirements. The Court of Appeal agreed but also decided that the authority could have used a statutory discretion to allow the transport of Blood's sperm to Belgium for treatment.
In Blood's case, Lord Hoffman noted that the sperm's storage was unlawful without the requisite written consent. However, given the unprecedented circumstances, he realised it was necessary for the clinic to store the sperm first and decide the legality later. He commented that he did not foresee the Courts would consider the legality of exporting unlawfully stored sperm again. A decade later, posthumous sperm has unlawfully been stored pending resolution of new legal arguments and Mr Justice Charles has likewise declared the case a 'novelty' in the law.
Following the Blood case, the Government held a review of the law. The 1998 report concluded that the 'written consent' requirement should remain. Coincidentally, on the same day last week, MPs in the lower house of Victoria, Australia passed a package of reproductive law reforms which included a controversial clause to allow women to conceive using their partner's posthumous gametes provided she has prior written consent.