Natasha and Barry Smith, both 60 and from Worcestershire, want to keep the memory of their only son alive by hiring a surrogate mother and using their son's sperm to have a grandchild. The clinic where the sperm is stored has refused to release it and the Smiths are now considering going to court.
However, fertility specialists said that laws covering fertility treatment in Britain only gave rights to parents, not grandparents.
Posthumous conception is unusual, but an investigation by The Independent earlier this year showed that in 1998 at least six children had been born years after the death of their fathers. In all cases, written consent had been given by the fathers, and their wives or partners had given birth to the children themselves.
The Smiths' case is the first instance in the UK where a couple is demanding the right to have a grandchild. Tim Hegley of Issue, the infertility support network, was critical. "Infertility treatment should be used to treat infertile couples and help them become parents, it should not be used for social engineering which is what this is," he said.
Agneta Sutton, head of research at the Centre for Bioethics and Public Policy, also opposes the Smiths. "One can sympathise with them but it is super-selfish for them to bring a child into the world with no genetic parent who wants them. They are doing it to have a replacement son, which is not healthy and they are also quite old. Under the law they have no rights as grandparents," she said.
The Smiths' son, Lance, aged 36, was killed in car crash in November last year. Sperm was taken when a written consent letter was produced by his parents.
Six months earlier, Lance Smith had typed a brief letter saying that he wished a "quantity of his sperm" to be taken from his body in order that his "fiancee", who was unnamed, could still bear his child.
His long-term girlfriend, who was originally interested in having his child, attended the Priory Hospital, Birmingham, to discuss fertility treatment with his sperm. But she then decided that it was time to move on and no longer wants the treatment.
The Smiths now want the sperm released to they can take it abroad and pay an egg donor and a surrogate mother to bear them a grandchild. Mr Smith said: "I think there is something fundamentally wrong with the law to give one hope when you are out of your mind with grief. We threw ourselves into this because we thought Lance could live on in the child."
However the Priory Hospital believes that such a surrogacy is outside the scope of the original consent. It is believed that a second consent letter has now been found, which is more general and implies that "sperm can be used to create a child".
The Smiths have been advised by the hospital and the Human Fertilisation and Embryology Authority (HFEA) to get this second consent form validated by a court. Suzanne McCarthy, chief executive of the HFEA, said that once the consent was verified then it would be up to the clinic to establish what was in the best interests of any future child and whether to release the sperm.Reuse content