A matter of birth and death: Richard Phillips talks to a couple in a race against time because of the policy of a fertility clinic

After two years of marriage, Caroline and James Dunphy, both 26, decided to start a family. A few days later, James noticed a lump on his neck. He went to the doctor, confident it would be a routine matter. It wasn't. He had lymph gland cancer and he was advised to undergo a 13-week course of chemotherapy as a matter of urgency.

'The first thing I asked the consultant was how long I had to live, but he said he couldn't tell me. It felt like a death sentence,' he says.

After Caroline's initial concern about her husband, she started to worry about the effect his treatment would have on their attempts to start a family. 'When James asked about it, the GP didn't take the question seriously at all. He told us to forget about it and then, when we were ready to try again, to drink plenty of Guinness] Neither of us could believe his attitude.'

The couple made further enquiries and were advised by their consultant to have some of James's sperm frozen. 'We were warned that after the chemotherapy there would be a high chance of him being infertile,' says Caroline.

They went ahead, but then discovered that the clinic they used destroys sperm as soon as the person who has deposited it dies.

James said: 'When I went to the clinic I was told that by law I had to sign a form. The one I was given said that if I died my frozen sperm would be thrown away and my widow would not be able to do anything about it. Here I was unsure about my future,about to undergo chemotherapy, yet if my treatment was unsuccessful Caroline would be without me and without our child as well. It seemed so unfair.

'When I remarked on it I was told I could sign the form or not use the bank. It wasn't a choice at all: I had to sign because within two days my chemotherapy would have started, and the chances were that I would be infertile and by then it would be too late to do anything about it.'

The sperm bank James used is based at the Assisted Conception Unit at Birmingham Maternity Hospital, the longest-established fertility clinic in the Midlands. Its policy surrounding the death of donors is uncompromising.

'It is true to say that we do not at present use the husband's gamete after his death, but it is under review by our ethical committee,' says Dr Masoud Afnan, the clinical director, who dealt with the Dunphys' case. 'Indeed, as it stands the sperm is destroyed as a matter of course. However we do not do that without informing the partner and if they are unhappy we would talk the whole thing through with them. This particular couple can make an appointment and see me at any time if they are unhappy.

'When we treat a couple or individual we must have due regard for the law. The wording of the 1990 Human Fertilisation and Embryology Act relating to these matters says that the needs of the child must be considered above everything else, and that includes the need for a father.'

In the event, for pounds 120, their first attempt at Artificial Insemination by Husband (AIH), was successful. Jessica was born in June, weighing a healthy 71 2 pounds.

The Human Fertility and Embryology Authority says 'directed consent form (91) 6' should have been used, giving the donor an opportunity to approve the use of his sperm after his death. But in this case it seems that perhaps either a separate, contradictory form was used or alterations were made to the standard form.

Caroline and James say one consultant tried as hard as he could to put them off the whole idea of having children at all if there was the prospect of only one parent.

'You'd have thought we'd have made developments since the Sixties and Seventies,' says James. 'When my mother was pregnant with my youngest brother, my father learnt he had only months to live because of cancer. My mother was advised to have an abortion, but refused to let the pressure get to her. Despite repeated advice to terminate the pregnancy, she stood by her feelings and has never regretted it. She says nothing has changed in 25 years.

'My father died when my brother was two weeks old. Five of us were brought up by a single parent and Caroline also only had her mother to look after her. What right have these doctors to decide that they should only help families when there are two parents?'

Becky Miles, a former cancer patient who set up the National Cancer Alliance earlier this year to improve cancer services, described the Dunphys' case as another example of bad practice.

'How can you expect a person who is fighting for his life to fight the system as well? It is an abomination, making an appalling situation three hundred times worse and there's no morality in it.'

James is now in remission. He and Caroline are determined to have another child, but have the constant worry that James' illness might return. And, should he die, a remarkable medical opportunity for Caroline to have another of his children will be denied her because James signed the form the Birmingham clinic insisted on.

'I know I'm more fortunate than many others to have Jessica,' says Caroline. 'But when you think some clinics will impregnate single mothers with sperm from a stranger, yet I wouldn't be allowed to use my own husband's sperm if he died, that can't be right.

'It's good that developments are being made in areas like infertility but it's time that they sorted out the rules surrounding them. Who could say what James and I have been through is right? I have been penalised for being married and James for being ill. I try not to think about it because it makes me too angry, and with a husband and a new baby I ought to be happy.'

(Photograph omitted)