Page last updated at 14:37 GMT, Wednesday, 8 October 2008 15:37 UK

Fight to use dead husband's sperm

A widow is battling to use sperm taken from the body of her dead husband, in a British legal first.

The woman, who cannot be named, wants to use sperm taken from her husband after he died unexpectedly during a routine hospital operation last year.

The mother-of-one applied for an emergency court order allowing his sperm to be taken shortly after he died and it is now being stored in a clinic.

The law allows sperm only to be used with the written consent of the donor.

But the 42-year-old, who is known only as L as she cannot be named under a court order, went before the High Court in Preston to apply to be allowed to use the sperm to conceive.

I am not satisfied that it is possible to lawfully remove, or authorise the removal of gametes (sperm or eggs) from a dead person
Mr Justice Charles

She told the judge, Mr Justice Charles, that storing sperm or getting written consent was not discussed because they had no reason to fear the minor operation would lead to his death.

She said she and her husband, named only as H, had discussed having another child and talked with other family members about their child having a baby brother or sister.

Her lawyers have said despite British law requiring written consent, destruction of the sperm would contravene her human rights.

But Mr Justice Charles said her application to retrieve the sperm and use it, either in the UK or abroad to have another child, was a "novelty".

He said: "Accordingly, at present I am not satisfied that it is possible to lawfully remove, or authorise the removal of gametes (sperm or eggs) from a dead person, who has not given an effective advanced consent to this."

'Difficult issue'

A final decision on whether she can use the sperm is now with the Human Fertilisation and Embryology Authority (HFEA), which regulates the storage of such material.

Professor Lisa Jardine, Chair of the HFEA, said: "We welcome the court's ruling in this case.

"This has been a very difficult issue and we very much sympathise with the situation L has found herself in.

"As a regulator we must operate within the legislation.

"This ruling confirms that HFEA acted correctly and the HFE Act is compatible with the Human Rights Act, and that gametes can only be stored with effective written consent of the person providing them."

The case follows that of Diane Blood, from Nottinghamshire, who fought through the courts to win the right to have a baby using sperm taken from husband while he was on a life support machine.

Her husband, Stephen, 30, died from bacterial meningitis after falling into a coma in 1995.

The HFEA originally refused to allow her to conceive using his sperm.

The decision was upheld in the High Court, but the Court of Appeal allowed her to have IVF treatment using her dead husband's sperm in a Belgian clinic.

Diane Blood registers sons
01 Dec 03 |  Nottinghamshire
Blood wins 'father's name' battle
18 Sep 03 |  Nottinghamshire

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