The widow of a Falklands veteran is going to the High Court in an attempt to stop the couple's frozen embryos from being destroyed.
Samantha Jefferies, an occupational therapist from East Sussex, was about to undergo fertility treatment in 2014 when her husband, Clive, died suddenly from a brain haemorrhage. It was to be the couple's third cycle of IVF, after two previous attempts were unsuccessful.
Mr Jefferies had provided written consent in July 2013 for the embryos to be stored for 10 years. However, as the couple had received NHS funding to cover only two years of storage, the Sussex Downs Fertility Centre requested that they amend their consent form to two years.
That consent has now expired, and the law states that the embryos cannot now be stored or used for IVF treatment.
'If [the embryos] are destroyed I will go through the whole grieving process for a second time,' Mrs Jefferies told the BBC, adding: 'These are my embryos and I believe I should be allowed to decide what happens to them.'
Mrs Jefferies is asking the High Court to overrule the original consent form, which she argues does not reflect her husband's intentions for the embryos. She has separate evidence showing that he wanted the embryos to be stored for ten years and to be used posthumously by Mrs Jefferies.
Mrs Jefferies hopes that the High Court will be sympathetic towards her case, citing a ruling from 2014 in which a judge allowed a widow to store her late husband's sperm beyond what he had originally consented (see BioNews 746).
She also points out that the Human Fertilisation and Embryology Authority (HFEA) wrote to clinics in 2014 to say that storage periods should not be related to payment arrangements, and that couples should be allowed to retain their embryos for ten years even if their funding runs out before then.
This guidance was in place prior to the Jefferies' issuing consent, though it was not reflected in the policy of Sussex Downs Fertility Centre. The clinic, which supports Mrs Jefferies case and is paying her legal costs, has now changed its procedure.
James Lawford Davies, the solicitor representing the clinic and Mrs Jefferies, told the Guardian: 'We will argue that, if you look at all the evidence in relation to [the Jefferies'] wishes, together with Clive's explicit consent to the posthumous use of the embryos by Samantha, it is clear he intended to consent for a 10-year period.'
'It seems very wrong that Samantha may be prevented from using embryos that were created using her own genetic material in circumstances where it is clear that Clive would have wanted her to be able to use them,' he added.
A spokesperson for the HFEA said: 'We have made it clear to all clinics that they must not align the storage period a patient consents to with their payment arrangements. While we do not comment on legal cases, we hope that it may be possible to reach a positive resolution to this matter in the near future.'