Test case: Woman launches legal fight to 'harvest' sperm from sick partner

Man is being kept alive medically after devastating series of heart attacks and could die at any time, High Court told

A woman who cannot be named has launched a legal battle for the right to "harvest" her seriously-ill partner's sperm so that she can have his children.

The High Court action is being seen as potentially an important test case, involving a man kept alive medically after a devastating series of heart attacks who could die at any time.

The woman "AB" says her partner "P" would have given his written consent had he known "he would be in his current state".

Her lawyers say she is P's common law wife and they have been in a relationship over several years and had extensive discussions about raising a family. Last year P proposed marriage with a ring, and she had accepted.

AB is challenging at London's High Court a decision of the Human Fertilisation and Embryology Authority (HFEA) preventing her partner's sperm being retrieved from him and stored for future use, possibly abroad.

High Court judge Mrs Justice Carr discharged a court order AB obtained in an emergency telephone application made to another judge on Christmas Eve allowing a hospital to carry out a harvesting operation pending the outcome of her judicial review application against the HFEA, the UK regulator that monitors the use and storage of human eggs, sperm or embryos.

Her legal challenge is due to be heard over two days next month.

AB's lawyers had argued the order was urgently needed because P was subject to a "do not resuscitate" (DNR) order and might die before the hearing, but Mrs Justice Carr ruled this week the order was legally flawed and should never have been made.

The judge also directed that the Family Division judge who hears AB's legal challenge should sit at the start of the hearing as a judge of the Court of Protection - a court set up to safeguard vulnerable people - to consider "what is in P's best interests" before going on to hear AB's arguments against the HFEA.

AB's lawyers told Mrs Justice Carr that P suffered his first cardiac arrest and was taken to intensive care in early December.

By Christmas Eve he had suffered four heart attacks and the DNR order had been issued. AB said she had been advised he was in a "permanent vegetative state" and could die at any moment.

The HFEA told AB's lawyers that there was no power to issue a special licence to allow the hospital caring for P to retrieve and store his sperm because of provisions of the 1990 Human Fertilisation and Embryology (HFE) Act requiring P's consent.

The HFEA also said P's hospital was not licensed to store gametes - the reproductive cells in sperm - and they should not be harvested "in circumstances where they cannot lawfully be stored".

Lawyers for AB are accusing the HFEA of misapplying the law when it decided it did not have power to grant a special licence for storage.

The latest medical update, received by the High Court this week stated that P's condition had stabilised and the DNR notice had been lifted. But it remained grave, and he relied on a tracheotomy for air and a nasogastric tube for feeding.

The judge refused to make a protective costs order in favour of AB to limit the amount she will be exposed to if she loses her legal challenge.

Her counsel Richard Alomo said she was "a person of very limited means". Her case raised important legal questions.

Mr Alomo said: "There is clearly a public interest in having this issue settled once and for all. She (AB) wants to obtain a decision she genuinely and sincerely believes her partner would want."

Rejecting the application, the judge said the case did raise a question of general public importance, but the information provided to the court about AB's assets and means was "wholly inadequate" to justify a protective costs order.

She said: "At least at some time P has been a wealthy man, having made a great deal of money from investment banking before retiring."

PA

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Online Sales and Customer Services Associate

£14000 - £16000 per annum: Recruitment Genius: Full time and Part time positio...

Ashdown Group: IT Manager - Salesforce / Reports / CRM - North London - NfP

£45000 per annum: Ashdown Group: An established and reputable Not for Profit o...

Recruitment Genius: Sales Ledger & Credit Control Assistant

£14000 - £17000 per annum: Recruitment Genius: A Sales Ledger & Credit Control...

Recruitment Genius: Project Administrator

£16000 - £19000 per annum: Recruitment Genius: A Project Administrator is requ...

Day In a Page

Syrian conflict is the world's first 'climate change war', say scientists, but it won't be the last one

Climate change key in Syrian conflict

And it will trigger more war in future
How I outwitted the Gestapo

How I outwitted the Gestapo

My life as a Jew in wartime Berlin
The nation's favourite animal revealed

The nation's favourite animal revealed

Women like cuddly creatures whilst men like creepy-crawlies
Is this the way to get young people to vote?

Getting young people to vote

From #VOTESELFISH to Bite the Ballot
Poldark star Heida Reed: 'I don't think a single bodice gets ripped'

Poldark star Heida Reed

'I don't think a single bodice gets ripped'
The difference between America and Israel? There isn’t one

The difference between America and Israel? There isn’t one

Netanyahu knows he can get away with anything in America, says Robert Fisk
Families clubbing together to build their own affordable accommodation

Do It Yourself approach to securing a new house

Community land trusts marking a new trend for taking the initiative away from developers
Head of WWF UK: We didn’t send Cameron to the Arctic to see green ideas freeze

David Nussbaum: We didn’t send Cameron to the Arctic to see green ideas freeze

The head of WWF UK remains sanguine despite the Government’s failure to live up to its pledges on the environment
Author Kazuo Ishiguro on being inspired by shoot-outs and samurai

Author Kazuo Ishiguro on being inspired by shoot-outs and samurai

Set in a mythologised 5th-century Britain, ‘The Buried Giant’ is a strange beast
With money, corruption and drugs, this monk fears Buddhism in Thailand is a ‘poisoned fruit’

Money, corruption and drugs

The monk who fears Buddhism in Thailand is a ‘poisoned fruit’
America's first slavery museum established at Django Unchained plantation - 150 years after slavery outlawed

150 years after it was outlawed...

... America's first slavery museum is established in Louisiana
Kelly Clarkson: How I snubbed Simon Cowell and become a Grammy-winning superstar

Kelly Clarkson: How I snubbed Simon Cowell and become a Grammy-winning superstar

The first 'American Idol' winner on how she manages to remain her own woman – Jane Austen fascination and all
Tony Oursler on exploring our uneasy relationship with technology with his new show

You won't believe your eyes

Tony Oursler's new show explores our uneasy relationship with technology. He's one of a growing number of artists with that preoccupation
Ian Herbert: Peter Moores must go. He should never have been brought back to fail again

Moores must go. He should never have been brought back to fail again

The England coach leaves players to find solutions - which makes you wonder where he adds value, says Ian Herbert
War with Isis: Fears that the looming battle for Mosul will unleash 'a million refugees'

The battle for Mosul will unleash 'a million refugees'

Aid agencies prepare for vast exodus following planned Iraqi offensive against the Isis-held city, reports Patrick Cockburn