A legal fight by a UK woman to have a child using sperm taken from her husband after his death is underway. The case highlights the need for regulatory clarity on the issue, which first came to prominence in 1995 when Diane Blood won the right to conceive using sperm from her comatose spouse.
Doctors were allowed to harvest the sperm as the unnamed 42-year old woman and her husband, from Twickenham. London, had just begun fertility treatment, a judge ruled. However, the Human Fertilisation and Embryology Authority (HFEA) are questioning the legality of the sperm extraction process. The law currently requires the man’s written consent, although a gynaecologist has confirmed that the couple were seeking fertility treatment before the man’s death. ‘Had the husband had the opportunity to give consent in writing, it is clear from the overwhelming evidence that he would have done so’, said David Josiah-Lake, the solicitor representing the woman. In Diane Blood’s case, she was eventually permitted to undergo treatment abroad when the HFEA lifted its ban on the export of human gametes. She now has two children. She supports the current applicant, saying: ‘If the couple were engaged on a joint venture to have a child and there is evidence from a conversation that the deceased would have wished the surviving partner to continue with that notwithstanding his death, then I see no need for that consent to be in writing. I cannot imagine life without my children. They bring joy to a great many people including my late husband’s family’.
Vincent Cable, the widow’s local Liberal Democrat MP, submitted an amendment to the Human Fertilisation and Embryology Bill, currently passing through parliament, which would allow the use of sperm in such cases in the UK, removing complications surrounding cross-border fertility treatments. He additionally proposed that a consultant’s confirmation of the deceased’s intention to have children should be sufficient evidence of consent. ‘This amendment is quite narrowly drawn but would deal with a small number of specific cases where it is a woman’s right to have a child by her partner. In this case the couple were already embarking on fertility treatment and it was clear her husband had it in mind to support her having
a child in this way, so she could have a stronger case than Mrs Blood’, said Cable.
The widow hopes that the HFEA will allow her to use her late husband’s sperm to conceive a brother or sister for their only daughter. The HFEA said that they could not comment on the case as it was before court.