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Widow permitted to store husband’s sperm long term despite non-compliance with regulations

HFEA applies for permission to appeal against judgment

Mrs Justice Hogg has permitted a woman to have her late husband's sperm stored for up to 55 years notwithstanding that the necessary consents had not been executed by him prior to his death. The Human Fertilisation and Embryology Authority, which was a respondent to the proceedings, has applied for permission to appeal against the judgment.

In Warren v CARE Fertility (Nortmapton) Limited & HFEA [2014] EWHC 602 (Fam), Mrs Warren had applied for a declaration that it is lawful for the sperm of her husband Warren Brewer, who had died in 2012, to be stored beyond 18 April 2015 and for a period of up to 55 years until 18 April 2060 so that it can be used by her for the purposes of conceiving a child or children.

Mr Brewer had been diagnosed with a brain tumour in about April 2005. After operative treatment he required radiotherapy, of which a likely consequence would be to render him infertile. He wished to keep open his option open to become a father of his own child. Thus he was referred to the Clinic for collection and storage of sperm before he received radiotherapy. This was undertaken in April 2005.

Mrs Warren met Mr Brewer in 2004. They married in December 2011 in the Hospice shortly before his death. It was their mutual wish to become parents. In 2008 Mr Brewer formally named Mrs Warren as "his partner" to enable her to use his sperm after death, and for him to be named on the birth certificate of any child created with his sperm. He subsequently told Mrs Warren that he had done this, and as he wanted to enable her to have his children if she wished.

Mrs Justice Hogg was satisfied that after 2008 Mr Brewer never changed his mind and wanted Mrs Warren to have the opportunity to have his child, or children, after his death.

The Human Embryo and Fertilisation Act 1990 (as amended) provides for a deceased's sperm to be used by "his named party" to create an embryo. The initial maximum storage period was established as 10 years. The 2009 Regulations enable the extension of that period, subject to certain requirements under Regulation 4 or 7. Notwithstanding his wishes and intentions and various written consents Mr Brewer did not provide written consent as required by the Regulations, nor did he provide the requisite medical certificate. This was because the clinic upon which the obligation fell failed to give him relevant information as to the requirements of the Regulations and failed to obtain the requisite long-term consent from him or the appropriate medical opinion. Hogg J was satisfied had he known what was required he would have done that which was necessary.

Hogg J applied the Human Rights Act 1998, s3 and Article 8 of the ECHR. Section 3(1) : "So far as it is possible to do so primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention (Human Rights) rights.

The judge held that Mrs Warren has a right under Article 8 in that she has the right to decide to become a parent by her deceased husband, for which he had made provision and which would accord with his wishes and intentions.
Hogg J said that the state should not interfere with Mrs Warren's right under Article 8, and followed Ghaidon –v- Godin-Mendoza 2004 2AC 557.

Accordingly, she interpreted the statutory legislation with "a broad approach concentrating in a purposive way on the importance of the fundamental right involved" per Lord Steyn.

Mrs Justice Hoggg said:

"The Human Fertilisation and Embryology Authority, while resisting her application, have expressed its sympathy for her. May I also add my great sympathy for her. She fell in love with a man, cared for him and loved him. He wanted her to have the opportunity to have his children if she wanted. She has suffered an enormous loss. I know she is supported by her parents-in-law. I wish her and Mr Brewer's parents well, and ultimately whatever her decision may be I wish her and the family much happiness after such a difficult and sad time."

The HFEA has applied for permission to appeal against the judgment. It has said:

"We had hoped that the court could find a way for Mrs Warren to store the sperm for longer without having wider implications for the existing consent regime.

However, because the judgment acknowledges that written consent to store the sperm beyond April 2015 is not in place, the judgment may have implications for other cases in which the sperm provider's wishes are less clear.

We have therefore sought leave to appeal and will quickly consider the implications of the judgment before we decide whether to pursue an appeal."

The full judgment is here. This summary is derived from the judge's own summary of the judgment.

7/3/14