Beth Warren's legal battle to keep her late husband's frozen sperm has finally ended following the Human Fertilisation and Embryology Authority's (HFEA) announcement that it will not appeal the High Court ruling in Mrs Warren's favour (reported in BioNews 745).
Prior to commencing treatment for cancer, Mrs Warren and Warren Brewer decided to store Mr Brewer's sperm for future fertility purposes. Mr Brewer died in February 2012. The regulations on storing sperm state that the donor's consent must be regularly renewed to continue storage. Although he had made repeated and clear indications that his wife be able to use his sperm in the event of his death, Mr Brewer had only provided the necessary written consent to store his sperm until April 2015.
Mrs Warren, 28, sought a court order for her late husband's sperm to remain in storage after April 2015, allowing her more time to consider and plan conceiving her late husband's child. Last week, Mrs Justice Hogg decided in her favour. 'The evidence indicates that both Mr Brewer and his wife were in agreement. He wanted her to have the opportunity to have his child, if she wanted, after his death', she held. Accordingly, she ruled that it was 'right and proper, and proportionate' to store the sperm until at least April 2023.
Despite the High Court's decision, the prospect of an appeal by the HFEA to the Court of Appeal had remained until the fertility regulator announced on 13 March that it had decided not to do so. 'After carefully considering not just the legal issues, but also the moral ones, we have come to the conclusion that an appeal is not the right approach', it said.
Explaining its decision, the HFEA's interim chair, Sally Cheshire, said: 'We know that the extra few days of uncertainty have been stressful for Mrs Warren, but we have tried to minimise that stress by making a decision as quickly as possible.
'Seeking leave to appeal may have appeared unsympathetic to Mrs Warren's very regrettable situation, but we owed it to future patients to think carefully about the implications of a complex legal judgment.
'We didn't want Mrs Warren's deserving and highly unusual case to pave the way for other cases where the wishes of the deceased patient are much less clear.
'Fortunately, we think we can guard against any such cases without having to appeal'.
This case has cast a spotlight on the complexities surrounding current requirements of (continuing) consent for gamete storage. The HFEA is now in the process of contacting all fertility clinics to 're-emphasise our existing guidance around the importance of written consent and of clinics' crucial role in documenting patients' wishes clearly'.