Sperm cannot be used without donor's consent

LAW REPORT v 23 October 1996
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Regina v Human Fertilisation and Embryology Authority, ex parte Blood; Family Division (Sir Stephen Brown, President) 17 October 1996

Without the written consent of the donor, sperm taken from a deceased donor shortly before his death could not lawfully be used for the artificial insemination of his wife.

Sir Stephen Brown, President of the Family Division, dismissed an application by Mrs Diane Blood for judicial review of a decision by the Human Fertilisation and Embryology Authority not to release sperm obtained from her deceased husband before his death to enable her to be artificially inseminated, because her husband had not given his written consent to such a procedure.

Lord Lester of Herne Hill QC and Michael Fordham (Laytons) for the applicant; David Pannick QC and Dinah Rose (Morgan Bruce, Cardiff) for the respondent.

Sir Stephen Brown said the applicant, now 30, married her husband Stephen in 1991, following a nine-year courtship. They lived a happy married life and greatly wished to have a family. They had a normal sex life. Towards the end of 1994 they began actively trying to have a child. But in February 1995 tragedy struck. Stephen was admitted to hospital with suspected meningitis. His condition rapidly deteriorated. The applicant raised with the doctors the question of taking a sperm sample from her husband. Two samples were taken before he was certified clinically dead. He had been in a coma throughout. The applicant now wished to be artificially inseminated with her late husband's sperm in order to produce a child.

The Human Fertilisation and Embryology Act 1990 was passed to regulate the procedures of human fertilisation and the storage and use of human embryos and gametes (sperm). For this purpose it established the Human Fertilisation and Embryology Authority, whose responsibilities included operating a licensing scheme, maintaining a code of practice and issuing directions.

The Act provided by section 4(1) that no person should store gametes or use sperm in the treatment of any woman except under licence. By section 12 it was a condition of every licence granted that the provisions of Schedule 3 were complied with. Schedule 3 was entitled "Consents to use of gametes or embryos" and provided by paragraph 1 that to be effective such consent "must be given in writing". Paragraph 5 provided:

(1) A person's gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent. (2) A person's gametes must not be received for use for these purposes unless there is an effective consent by that person to their being so used. (3) This paragraph does not apply to the use of a person's gametes for the purpose of that person, or that person and another together, receiving treatment services.

The applicant's husband had not given written consent and was in no position to do so, being unconscious. The Authority therefore considered that the storage and use in treatment of his sperm in the United Kingdom would be illegal.

The applicant relied on the exception in paragraph 5(3) of Schedule 3, claiming that she and her husband were "together receiving treatment services". Although her husband died before insemination could take place, nevertheless there was a joint enterprise having regard to the fact that the sperm was taken from his unconscious body in her presence and that they had discussed their intention and desire to have a child and had specifically addressed the possibility of posthumous artificial insemination.

His Lordship was unable to accede to this submission. Unhappily there was no opportunity to commence treatment whilst the husband was conscious and aware of events taking place. The taking of the sperm samples was in fact a unilateral act undertaken at the wish of the applicant herself. No doubt she acted in complete good faith believing she was furthering the wishes of her husband as well as of herself.

It was no doubt because the whole field of artificial insemination with sperm obtained from a man who subsequently died was so highly sensitive and ethically controversial that the Act permitted no element of discretion on the Authority's part. The application in respect of treatment in the UK accordingly failed.

His Lordship also rejected the applicant's contentions that the Authority acted unlawfully in refusing to allow her to have the treatment abroad.