Lord Lester QC, representing Diane Blood, said the question the three appeal judges had to address was not whether the couple were right in having that joint wish but whether there was a legal justification for not respecting that desire.
Mrs Blood, 31, is challenging rulings by the Human Fertilisation and Embryology Authority which banned her from using her dead husband Stephen's frozen sperm, as she did not have his written permission. The HFEA also told Mrs Blood she could not take the sperm abroad for treatment in a foreign clinic. A sperm sample was taken from Mr Blood while he was in a coma. "Had he been conscious there is no doubt he would have signed the consent form," said Lord Lester.
Mrs Blood claims the rulings were unreasonable, and that her rights under European law superseded British legal restrictions. She says that when the sperm sample was taken from her husband he was still alive.
Lord Lester said: "As he lay dying he could not sign a written consent because he was deeply unconscious." Lord Lester added: "Mrs Blood is clearly honouring the wishes of herself and Stephen because they had discussed the very situation which tragically later arose."
"The Human Embryology and Fertilisation Authority say she is trapped by the law. She cannot have treatment in the UK because of the business of the written form. One question is whether this court can free Mrs Blood from that trap."
Lord Lester said Mrs Blood could have had the treatment using her husband's sperm perfectly lawfully while he was alive, even if the medical team knew that he was dying.
He said the authority had barred Mrs Blood from taking her husband's sperm abroad for treatment, because if she could not obtain treatment here, it could not allow her to have it anywhere else.
The hearing was adjourned until today.