Couple fight for baby girl

The couple are seeking a change in IVF guidelines

A couple have pledged to use new legislation in their fight to choose the sex of their baby.

Alan and Louise Masterton, who lost their only daughter Nicole in a bonfire accident at their home in Scotland, have been battling to have a girl by in-vitro fertilisation (IVF).

Current rules on the use of the techniques - administered by the Human Fertilisation and Embryology Authority (HFEA) - ban choosing the sex of a baby unless there is a pressing medical reason.

Nicole Masterton died in a bonfire accident

But the Mastertons now plan a court challenge based on two parts of the European Convention on Human Rights - recently fully incorporated into UK law in the Human Rights Act.

The couple, who have four sons, argue that they have a sound case for wanting a girl and repeated their assertion that they were not seeking a "designer baby".

They said they tried for 15 years to have a girl and lost their only one at the age of three.

They have asked to use a technique known as pre-implantation genetic diagnosis (PGD) as part of the standard IVF process.

This involves the selective destruction of male embryos and is usually employed for families with a history of hereditary diseases in male children, like haemophilia or muscular dystrophy.

What we're hoping to do with the use of technology is create the female dimension again to our family

Alan Masterton

Mr Masterton, from Monifieth in Angus, said: "Our family will be imbalanced for eternity because we lost a very special and precious member of our family.

"We can never replace that person Nicole was, but what we're hoping to do with the use of technology is create the female dimension again to our family."

Their legal case is based on article six of the European convention which guarantees a "fair hearing" from public authorities, which the Mastertons argue the HFEA has denied them.

They also argue that the authority's behaviour breaches article eight which enshrines the individual's right to "respect for his private and family life".

The challenge is based on the Human Rights Act

Mr Masterton said a specially-prepared document aimed at persuading the HFEA to amend its guidelines on his family's behalf was never seen by the panel considering the issue.

He told BBC Newsnight Scotland: "One copy of the document was taken into the meeting by the chairperson of the HFEA and the points that she thought relevant taken from the document and presented to the 21 lay members of that committee.

"That, in my book is censorship."

The authority said the correct approach for the couple was to find a willing clinic and ask it to apply. However, all five clinics with the expertise wrote back with refusals.

Mr Masterton said he is convinced the clinics would not risk their reputations by attempting to change the guidelines and he believes the authority knew that.

'Tragic circumstances'

After a further approach from BBC Newsnight Scotland, the HFEA repeated its position that it was still waiting for an application from a clinic.

Bishop Holloway: "Sex selection fears"

However, a spokesman said members were "moved by the tragic circumstances of the case" and added that the "matter could be considered by an HFEA licence committee on application from a licensed centre willing to undertake the procedure".

Richard Holloway, the Bishop of Edinburgh and former member of the HFEA board said that there was a deep-rooted public fear over sex selection.

He said: "I think that the HFEA is basically cautiously responding to these instinctive feelings.

"I think, in this case, it probably ought to look hard at it because, while you could probably make a case for a general regulation that sex selection is a bad thing, there must be exceptional circumstances.

"I would think this one probably was, and I hope they can get to a centre and get the centre to send in an application to the HFEA and that's what they're waiting for."