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Widow receives judgment in case similar to mine

13 October 2008
By Diane Blood
Mother who took the HFEA to court in 1996/7 to be allowed to export her late husband's sperm to facilitate treatment to bear his children, and author of 'Flesh and Blood', which tells her story.
Appeared in BioNews 479
This past week there have been reports of a case similar to the court case I won against the Human Fertilisation and Embryology Authority (HFEA) in 1997 (1,2,3). A woman was unexpectedly widowed when her husband underwent a routine minor operation in June 2007. Six days before that the couple had attended an initial appointment at a fertility clinic in order to try and conceive a sibling for their baby daughter. The wife sought and was granted a court order to remove and store her husband's sperm and she seeks to use that sperm to try to conceive a child either in the UK or abroad. She has the full support of her late husband's family, but the HFEA blocked moves to proceed. A court ruling was the only way forward.

The HFEA adjourned a decision on export on 7 November 2007 forcing an initial High Court ruling limited to the lawfulness of storage and treatment in the UK. This is different from my court case because I was refused permission to export from the outset, but I am not sure it is entirely helpful as it does not address all the practical solutions to the problem. Sometimes it makes sense to ask one question at a time but, when fertility treatment is involved, time is of the essence. It could also affect how costs are awarded in a court case.

As for storage and treatment in the UK, I had thought that my Appeal Court judgment made it clear that this would be unlawful in future cases. It did not conclude that retrieval was contrary to common law, for which we, at least, advanced good arguments based on my husband's best interests (amongst other things), including wider social interests after death. However the restrictions on storage meant that from a practical perspective my case could not set a precedent because it could not happen again. I appreciate that the Human Rights Act 1998 may have given this lady additional arguments that I could not advance in 1996/7. But even if she had won those points they'd have only led to a declaration of incompatibility, not altered a law that was in existence at the time her husband died. The judgment failed to deliver such a verdict but I believe does so bearing in mind the discretionary powers within the Human Fertilisation and Embryology (HFE) Act 1990. Even if it had been declared incompatible, it seems a bit academic anyway given that a Bill replacing the HFE Act is already before parliament and about to become law any time soon.

So the HFEA are back to considering export and where does it leave the widow? A year older and effectively back where I was in 1996 (except she might also have Human Rights arguments on export). Someone made an honest mistake and stored sperm when it should not have been stored. The judgment in this case, as in mine, makes it clear that there should be no question of prosecutions or criticism of those who acted openly and in good faith. Destroying the sperm does not rectify that mistake. Actually I would say it compounds it. It would mean the sperm had been retrieved in a pointless exercise.

This judgment highlights that the HFEA can exercise its discretionary powers to export sperm and that the EC Treaty Rights which led to me winning my court case are directly enforceable in this case also. It is up to the HFEA to consider any application which must be made within the next six months. If it says no, the widow can return to court to challenge that.

In my case, as I applied to export within the EU, they could only say no if there were public policy reasons for refusal and they must stand up to tests of necessity and proportionality. As my case should not happen again those reasons had to apply to me and me alone. They could argue that they now have another case, but one mistake in the decade since my Appeal Court judgement is hardly a flood and the pending update of the HFE Act seems to pretty much put a lid on any future cases before the legal landscape is changed.

I would therefore say this is another 'one off' case and the HFEA ought to deliberate on that basis. It is not my case. It is individual, like mine was, but I would hope the HFEA comes up with a compassionate decision. There was another similar case in Victoria, Australia. Even though in that state, at that time, posthumous conception appeared to be prohibited even with effective consent, (which the woman didn't have anyway) the relevant authority, following directions from her court case chose to allow 'export' to another Australian state. It therefore seems to me that compassion should be the relevant worldwide precedent.

1) Fight to use dead husband's sperm
BBC News |  8 October 2008
2) Battle to use dead husband's sperm
Press Association |  8 October 2008
3) Widow faces battle to use dead husband's sperm
The Daily Telegraph |  8 October 2008
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12 December 2008 - by Alan Doran 
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