Yesterday’s High Court judgment made the headlines. Elizabeth Warren successfully argued that her late husband’s sperm should not be destroyed. We look at the law behind this decision and the wider implications.
The Human Fertilisation and Embryology Act 1990 regulates the storage and use of gametes and embryos via a licensing system. It forbids the storage and use of sperm without a licence granted by the Human Fertilisation and Embryology Authority or HFEA. A change made in 2003 deals with the situation of a deceased father. This shows that Parliament had by then accepted the possibility that the sperm of a deceased man could be used to create and embryo, who would then become that man’s child.
Consent given to the storage of sperm is meant to specify the maximum period of storage, with a default period of ten years. An extended storage period of up to 55 years is allowed under new rules made in 2009.
Despite having given written consent on several occasions, the potential father, Mr Brewer, had not given written consent to storage for over ten years. He had never been given the opportunity to do so by the treating clinic – a point which has since been addressed in HFEA guidance. The judge said that this ‘produced a great and conspicuous unfairness’ to the couple because under the rules, without the extension of consent, the sperm sample would have to be destroyed after ten years.
The HFEA wanted the clarity provided by the rules to be maintained, but the judge disagreed. Taking account of the right to respect for private and family life in the Human Rights Convention, she overrode the rules and allowed for storage at least until 2023.
The judge said that her decision would only affect a few, because there are not many similar situations, and clinics should in future be alerted to the need to obtain extended consent where the potential father is terminally ill. But the HFEA is concerned that ‘the judgment may have implications for other cases in which the sperm provider’s wishes are less clear’. It is considering whether to appeal the case.
The HFEA's attitude seems cruel, but it has to ensure that consent is properly given and recorded. If the clarity of the written consent requirement is eroded it leaves open the possibility for further legal disputes in neighbouring situations.