Congratulations to Beth Warren, who has won her High Court battle to continue storing her husband’s sperm, overturning a Human Fertilisation and Embryology Authority ruling that the sperm would have to be destroyed next April.
The issue in the case was not about whether Beth’s husband wanted her to use his sperm after his death; it was about timing. Beth and her husband arranged to store his sperm for their future use in April 2005 after he was diagnosed with cancer. They agreed that Beth should be able to use his sperm if he did not survive, and he signed all the relevant consent forms agreeing to this.
However, UK law limits the maximum period for which sperm can be stored. The basic storage period is 10 years, and this can only be extended if the sperm provider is ‘prematurely infertile’ and renews his consent every 10 years. Warren had not explicitly signed any storage extension forms after he initially gave consent, so the question was whether, in paying a storage fee each year, he was in effect extending his consent even if he did not explicitly say so.
The HFEA initially said that, as he had not complied with the procedure correctly, the sperm could not be stored beyond April 2015 when the initial ten year period expired. However, Beth challenged this decision through a judicial review claim to the High Court, saying said that she was not ready to decide whether she wanted to use the sperm and should not be rushed into conceiving or creating embryos. She said that it was clear Warren’s wish that his sperm should be hers to use if she wished, and common sense said there should be some flexibility over the storage period.
The High Court agreed. Mrs Justice Hogg said that the HFEA was applying an ‘excessively linguistic and technical’ approach and that it should apply the statutory rules on storage with more flexibility. The fact that Warren had not signed particular forms did not mean that he did not consent to extending his storage.
In the past few days, the HFEA has announced that it will not be seeking leave to appeal the ruling, which means that Beth is now secure in the knowledge that she has until at least 2023 to use Warren’s sperm in treatment in the UK if she wishes to. Sally Cheshire, interim Chair of the HFEA, explained why the HFEA had taken a few days before announcing the decision not to appeal. She said:
‘Seeking leave to appeal may have appeared unsympathetic to Mrs Warren’s very regrettable situation, but we owed it to future patients to think carefully about the implications of a complex legal judgment. We didn’t want Mrs Warren’s deserving and highly unusual case to pave the way for other cases where the wishes of the deceased patient are much less clear.’
For the HFEA as the UK regulator, cases like Beth’s are tricky. The facts of the particular case may be compelling and sympathetic, but the HFEA also has a wider duty to apply laws which (rightly or wrongly) were designed to create clarity and certainty for everyone. However, this is one of those cases where the legal rules seem odd and arbitrary. Is there any logic for restricting the time for which sperm can be stored, if the sperm provider and his closest family are happy for it to continue? Perhaps the answer is a review of the law, rather than having to rely on the court to find a way around it.
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