Widow fights for right to child by dead husband

A young widow was yesterday preparing for a legal battle to be allowed to have a child using her dead husband's sperm. Meanwhile, another mother was embroiled in a test case over her refusal to allow her baby to have a liver transplant.

The two cases are the latest to spotlight the controversial ethical and legal arguments over "informed consent" to medical interventions.

They come in the wake of protests provoked by High Court rulings that a woman has no right to risk her own death and that of her unborn child by withholding consent to a caesarian birth.

In the latest dilemma, the Human Fertilisation and Embryology Authority (HFEA), which regulates artificial insemination, has blocked an attempt by the 30-year-old widow, DB, to have her dead husband's child because he never consented in writing to the use of sperm taken from him in March last year while he was brain dead on a life support machine after falling into a coma.

In the first case of its kind, Mrs B will challenge the authority's strict application of the law in a High Court judicial review tomorrow. Mrs B, from the Midlands, has protested that before his illness she and her husband had read about a widow receiving sperm from a dead husband and had agreed to the same if ever faced with a similar situation. "I know what his feelings were and I lost my husband," she said yesterday. "But I didn't lose the ability to have his child . . . I want the rest of my life back."

But Ruth Deech, chairman of the HFEA, said: "The notion of consent is fundamental to the Human Fertilisation & Embryology Act 1990. The Act expressly requires the written consent of a man to the storage and use of his gametes [sperm] after his death."

Moreover, written consent is only valid after the donor has had the opportunity to receive counselling, including consideration of the welfare of any child.

Directions made under the Act also ban the export of sperm unless it could be used lawfully in Britain, which means Mrs B cannot take advantage of offers by doctors to carry out the procedure in Belgium or the US.

Mrs B's predicament stands in contrast to a series of judgements on the other side of the coin where the consent rule does not appear to have been so strictly applied.

But Sheila Kitzinger, of Positive Care in Obstetrics & Gynaecology, said: "I cannot help but feel that if a child learnt about what had happened at a later date that child would feel very loved, very cherished and very wanted."

The British Medical Association said it had "tremendous sympathy" with Mrs B. But a spokeswoman said that the profession was "very anxious" that the principle of informed consent was not eroded in cases involving people in comas, or suffering from mental disablement.

John Parsons, the consultant in charge of the assisted conception unit at King's College Hospital, London, insisted: "It's important that people's genetic material is not used against their will. There is no way of being sure that although the man wanted a child with his wife, he also wanted her to have their child after his death."

As the controversy continued, a 27-year-old mother was meanwhile battling before the Court of Appeal in a test case over a parent's right to choose surgery for a child. David Harris QC, for the mother's local health authority, said the court's duty was to decide what was in the "best interests of the child".

The mother fears that the child would not survive the operation or lead a satisfactory life.

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