The press has reported the case of a UK woman who has won permission from the HFEA to have her deceased husband’s sperm exported abroad for IVF treatment after his death. You can read more about the story here.
How does UK law work on post-death use of sperm?
The rules in the UK are clear – there must be written (and signed) consent from the sperm provider allowing the post death use of his sperm in treatment. In this case, the man’s sperm was extracted surgically after he was already in a coma he never recovered from. His wife therefore did not have the written signed consent she needed for treatment to take place in the UK, although she maintained that IVF was always their plan and that Mr H would have wanted her to have a child in these circumstances.
How did Mrs H get permission to use Mr H’s sperm?
In the absence of being able to conceive through IVF in the UK, another option was to export the sperm to another destination where the consent rules were not so stringent. There is tight regulation of the circumstances in which sperm can be exported, and Mrs H therefore had to seek a ‘special direction’ from the HFEA giving her permission to do it. She was given that permission and this enabled her to export her husband’s sperm and undergo fertility treatment abroad. She is currently awaiting pregnancy test results.
Why is this a ‘ground-breaking’ case and did Mrs H break the law?
This case marks the first occasion that the HFEA, under such circumstances, has awarded a ‘special direction’ without the intervention of the court. Having followed in the footsteps of the well know case of Diane Blood (who successfully won the right, through the Court of Appeal, to export her deceased husband’s sperm abroad – leading to the birth of two children), the HFEA undoubtedly considered the principles of that case and what it said about the need to consider the human rights of all those involved. The decision over whether to give a special direction is discretionary and something for the HFEA to assess individually in each particular case. Previous cases do not create a formal precedent, but they are influential.
Mrs H therefore did not break the law, having sought permission as the law required her to do, and having been given it. We congratulate her resolve and wish her the very best in conceiving.
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