A woman has launched a legal battle for the right to use her seriously-ill fiancé’s sperm to have his children.
The man, identified as P, would have given his consent if he had known “he would be in his current state,” said his partner who is being called AB.
P suffered his first cardiac arrest in early December and was taken into intensive care. By Christmas Even he had suffered four heart attacks and was put under a “do not resuscitate” (DNR) order that was lifted last week.
P remains in a grave condition and relies on machines to breathe and eat.
The High Court action that will be heard over two days in February is an important test case involving a man who could die at any moment.
Although the couple are unmarried, AB’s lawyers argue that she is P’s wife under common law as she accepted his marriage proposal last year, after they had been together for several years.
They also had extensive discussions about raising a family, her lawyers said.
AB is challenging a decision by the Human Fertilisation and Human Fertilisation and Embryology Authority (HFEA) - the UK regulator that monitors the use and storage of human eggs, sperm or embryos.
The result prevents AB from retrieving her partner’s sperm to store for future use, possibly abroad.
The body cited the 1990 Human Fertilisation and Embryology (HFE) Act that requires P's consent in its ruling.
It added that P’s hospital is not licensed to store gametes – the reproductive cells in sperm – and they should not be harvested if they cannot be legally stored.
However, AB’s lawyers have accused the HFEA of misapplying the law in its decision.
High Court Judge Mrs Justice Carr already discharged a court order obtained by AB in an emergency telephone application made to another judge on Christmas Eve. It would allow a hospital to carry out a harvesting operation pending the outcome of her judicial review application against the HFEA.
AB’s lawyers say that the order was urgently needed because P was put under the DNR order and there is a risk he could die before the hearing.
However, Mrs Justice Carr said in early January that the order was legally flawed and should never have been made.