Widow wins right to have baby from her dead husband

Court clears way for fertilisation authority to give final go- ahead
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The Independent Online
Diane Blood, veteran of many a packed news conference, sweetly reversed roles yesterday by getting out her camera and snapping the assembled ranks of the press.

It was a charming touch, an apt expression of the excitement and relief - mixed with apprehension - prompted by yesterday's ruling by the Court of Appeal.

The three appeal judges had opened the way for her to try for a baby using her dead husband's sperm at a clinic in Belgium - and while the actual go-ahead can only be given by the Human Fertilisation and Embryology Authority, the regulatory body, no one seriously believes that after yesterday's judgment the authority will turn the 32-year-old widow down again.

Mrs Blood, a freelance advertising executive from Worksop, Nottinghamshire, would tell her child that he or she was "very special, and wanted by both parents", she said.

The sperm has been checked for viability and Mrs Blood has no gynaecological complications. At the high-standard clinic she has chosen in Belgium, the average success rate per cycle for in vitro fertilisation would be between 20 and 25 per cent.

Mrs Blood hailed the Court of Appeal ruling as a "victory for common sense and justice" - and a wonderful birthday present for her late husband. "It's Stephen's birthday today and I think it would have been a very nice birthday present for him and it's certainly very nice for me," she said.

The ruling was the turning point in a long battle - what Mrs Blood called the "emotional rollercoaster" - that began when her much-loved husband died from meningitis.

The authority - which regulates fertility treatment - had banned her from using, either in Britain or abroad, sperm taken from Mr Blood while he was in a coma because he had not given his written permission - after an opportunity to receive counselling - as specified in directions made under the 1990 Human Fertilisation and Embryology Act.

Not everyone applauded Mrs Blood's fight to have a fatherless child, some people thinking the decision to extract sperm from a dying man macabre.

But most defended the right to choose do so in a case, such as hers, where the couple had specifically discussed the possibility.

During the "extremely nice" things that had happened to her (like the unswerving support of both her family and in-laws and from the members of the public who gave pounds 8,500 to an appeal fund for legal costs), and the"extremely horrible" things (two knock-backs from the authority, one from the High Court and months of expensive and unsuccessful legal work before that), she only ever thought of giving up for a milli- second, she said yesterday.

As the Government launched its own, promised, review of sperm-donation rules, Lord Woolf, the Master of the Rolls, and the two other judges effectively made the possibility of a baby a reality, with the added bonus of an award of most of her legal costs.

The judges ruled that the sperm should never have been extracted in the first place, but although the 1990 Act barred Mrs Blood from having insemination treatment in the United Kingdom, she had a right under European Union law to be treated in Belgium unless there were good public policy reasons against it.

Authority members will meet on 27 February to make the final decision.

The judges were at pains to emphasise that their ruling made Mrs Blood's case a one-off. One of the factors that the Human Fertilisation and Embryology Authority had not taken proper account of was the fact that in future it would not be possible for the problem to arise because under UK law as the appeal court had now interpreted it, it would not be possible for sperm to be preserved without written consent.

The other, crucial, factor the authority never considered was the impact of Articles 59 and 60 of the EC treaty, which allows European Union citizens to receive medical treatment in other member states.

The ruling was viewed yesterday as a masterful and humane solution to a vexed legal and personal issue.

The authority emphasised in a statement: "The Court of Appeal has confirmed that the principle of informed written consent is an essential part of English law and that the posthumous storage or use of sperm or eggs without such consent is unlawful in this country in all cases."

But Ruth Deech, the authority's chairman, felt able to concede: "This is a judgment of Solomon which everyone can be very pleased about. We will reconsider the matter in the light of the fact that it's a unique case and that it does not open the floodgates."

The British Medical Association strongly welcomed the court's recognition of the importance of informed consent to the use of genetic material.

Mrs Blood's counsel, Lord Lester QC, told the judges: "She was in church on Sunday when the lesson was from Luke Chapter 8, the importunate widow and the unjust judge. No one could accuse your Lordships of that."

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