A British widow has made legal history by using her dead husband’s sperm to try to conceive a child – even though it is still against the law.
The high-flying businesswoman had his sperm extracted without his consent in an ‘act of desperation’ while he was in a coma and close to death with a heart condition.
It is against UK law to take, store, transport and use in IVF a man’s sperm without his written consent.
The businesswoman – who wishes to be referred to as ‘Ms H’ – has since his death undergone fertility treatment abroad and is now waiting to find out if she is pregnant
Ms H, who is in her early 40s, obtained an emergency ruling by a judge to have her husband’s sperm extracted because he was so close to death.
The judge agreed to the procedure being carried out to allow her time to find proof of his consent.
Despite this never being produced, she was later permitted to take the sperm to another country to begin IVF treatment.
Ms H’s case is the first time a British woman has gone ahead with such treatment without a court hearing.
The Human Fertilisation and Embryology Authority (HFEA) did not oppose her bid, meaning the regulatory body effectively supported her and her doctors in breaking the law.
Romania and Cyprus are among a handful of European countries where it is legal to use a man’s sperm without his consent in IVF treatment.
Ms H travelled with the sperm to one of these countries and was implanted last week. Her barrister Lawrence Jones said: ‘It was an act of desperation, [but] that was not her only motive. Of course she had only had days within which to think things through, but she is a stable, educated woman who sees the reality of her situation – no matter how dire.
‘She was in massive distress, and yet there was also deep love and rationality.’
Both the family of the deceased and that of the businesswoman are supportive of the decision.
Although personal details cannot be fully revealed in order to protect Ms H’s identity, reports have it that the couple met seven years ago and were married two years later in an Islamic ceremony in the UK not recognised by British law.
They had been planning to undergo IVF after initial attempts to become pregnant naturally had failed.
Some 18 months ago, before Ms H and her partner – a financial executive – were able to commence fertility treatment, he fell into a sudden coma due to a previously undiagnosed heart condition.
Doctors advised that he was unlikely to regain consciousness, and that his condition was fatal. Aware that her partner may not have long to live, Ms H appealed to their medical team to extract his sperm so that it may be stored and used at a later date.
Initially the team refused as she could not provide any evidence of his consent and he was unable to give it. Such action could be legally classed as assault.
A clinic storing sperm obtained in this way would also be committing an offence. Ms H sought legal counsel and barrister Lawrence Jones successfully obtained an emergency ruling from a judge that allowed for the extraction and storage of the sperm – known as gametes – to take place.
Mr Jones explains: ‘Because of the grave nature of Mr H’s condition, the judge agreed that there may not be time to mount a legal case – so allowed the extraction and storage of the gametes.
‘Of course there was a chance he could recover and give his consent, but we also sought to find evidence – looking through letters, emails and other documents.’
No evidence could be found – and Mr H died within days. The widow proceeded to pursue further legal action and her legal team later presented a dossier to the HFEA arguing why she should be allowed to use the sperm in fertility treatment.
Her case follows that of Diane Blood (pictured above) whose husband Stephen fell into a coma after developing bacterial meningitis in 1995 and later died. Doctors extracted his sperm while he was unconscious. The HFEA instructed UK fertility clinics not to treat Mrs Blood.
However, after a traumatic two-year legal battle, the Court of Appeal ruled that it was her human right to travel to a different country to have IVF using Stephen’s sperm.
However, it also ruled that this was only because of the unique circumstances of the case and it must not set a precedent.
Mrs Blood, from Worksop, Nottinghamshire, said yesterday: ‘At the time of my case I felt the HFEA was very much against me. I’m glad it has listened and moved forward, which made it easier for this woman and perhaps even easier for other women in the future.’
She had IVF after travelling to Belgium, which at the time permitted use of sperm extracted in these circumstances to be used in fertility treatment.
She became pregnant and her son Liam was born in the UK in December 1998. Four years later her second son, Joel Michael – again conceived using her late husband’s frozen sperm – arrived.
Mr Jones said of Ms H’s case: ‘My client knew wholeheartedly that she wanted to conceive a child with the man she had built her life with.
‘I was pleased that in this case we were able to work closely with the HFEA’s legal team, who were receptive to our argument and considered my client’s views carefully.’
However, James Lawford Davies, a solicitor who specialises in IVF and embryo research, said: ‘This decision creates uncertainty.
‘The HFEA is going about things in the wrong way by sidestepping the courts. Either this is against the law or it isn’t – it needs to be clear.’
An HFEA spokesman said: ‘As the regulator we must act in accordance with the law on the use of gametes. In practice, the consent of the person involved has been crucial in determining whether the gametes can be used or not.
‘In the case of Diane Blood, the HFEA sought to uphold the principle of informed consent and, indeed, this was confirmed by the court.
‘The HFEA has not changed its position since then and the law remains unchanged; harvesting gametes (sperm or eggs) and the storage, and then the use of gametes without the appropriate consent is unlawful and may amount to a criminal offence.’