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Ruling on use of deceased man’s sperm to conceive could affect current law (10 March 2014)

Date: 10/03/2014
Duncan Lewis, Family Solicitors, Ruling on use of deceased man’s sperm to conceive could affect current law

A woman whose husband froze his sperm before he died of cancer has won the right to create an embryo using the sperm – despite the fact her husband had not given the necessary consents before his death.

The Human Fertilisation and Embryology Authority (HFEA) is to appeal the decision, which will allow the man’s sperm to be stored until 2060.

The Family Division of the High Court heard that Elizabeth Warren, 28, met her husband Warren Brewer – a ski instructor – in 2004. In April 2005, Mr Brewer was diagnosed with a brain tumour and the couple married at a hospice in December 2011. Mr Brewer died in 2012 aged 32.

Before undergoing radiotherapy after his cancer surgery, Mr Brewer decided to store some of his sperm, as his cancer treatment was likely to render him infertile. His sperm was collected and stored in April 2005. Mr Brewer signed a standard consent form which allowed his sperm to be stored for up to three years, in accordance with the clinic’s policy. Later he signed further consent forms to enable the sperm to be stored until April 2015.

The court heard that the couple had discussed their wish to become parents and in 2011 Mr Brewer formally named Mrs Warren as his partner, using her maiden name, to enable her to use his sperm after his death. The moved also allowed Mr Brewer to be named as the father of any child born as a result on their birth certificate.

Mrs Justice Hogg told the court that she was satisfied that Mr Brewer had not “changed his mind” about Mrs Warren using his sperm to conceive a child after his death – and ruled that Mr Brewer’s sperm could be stored until 18 April 2060 to enable this to take place.

The HFEA has applied to the court for permission to appeal the ruling, however. In a statement the authority said:
“We had hoped that the court could find a way for Mrs Warren to store the sperm for longer, without having wider implications for the existing consent regime.

”However, because the judgment acknowledges that written consent to store the sperm beyond April 2015 is not in place, the judgment may have implications for other cases in which the sperm provider's wishes are less clear.

”We have therefore sought leave to appeal – and will quickly consider the implications of the judgment before we decide whether to pursue an appeal."

Under the Human Embryo and Fertilisation Act 1990 (amended 2009), the sperm of a deceased man can used by a “named party” to conceive a child.

The Act initially set a 10-year limit for storing sperm, but in 2009 this was amended. However, Mr Brewer had not supplied the required written consent or a medical certificate.

The court heard that the clinic storing his sperm had failed to advise him of the necessary consent and medical certificate required.

Mrs Justice Hogg ruled, however, that under Article 8 of the European Convention on Human Rights, Mrs Warren had a right to conceive using her husband’s sperm, as this had been a wish expressed by him and for which he had made provision by storing his sperm.

Mrs Justice Hogg said:

"The Human Fertilisation and Embryology Authority – while resisting her application – have expressed its sympathy for her.

“May I also add my great sympathy for her – she fell in love with a man, cared for him and loved him. He wanted her to have the opportunity to have his children if she wanted. She has suffered an enormous loss. I know she is supported by her parents-in-law.

“I wish her and Mr Brewer's parents well – and ultimately whatever her decision may be, I wish her and the family much happiness after such a difficult and sad time."

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