Court blocks parents' bid to collect dying son's sperm

The parents of a dying man have been denied permission to remove and store his sperm by a UK court.

The 22-year-old man, referred only to as X, suffered a stroke while playing sport and was immediately taken into intensive care, where it became clear there was no prospect of recovery. His parents made an urgent application to the Court of Protection for a declaration that it would be lawful for a doctor to retrieve and store X's sperm, in the absence of written consent, explaining that X had for many years spoken of wanting children of his own. X's father told the court that X's girlfriend had expressed a desire to carry X's child, which would be raised by X's parents.

Mr Justice Poole refused the application, explaining in his judgment that there was not enough evidence X would have consented to the extraction and that such procedure would 'not be in X's best interests': 'There is no advance decision in this case nor is there any evidence as to X's views and beliefs as they might have been relevant to a decision such as this,' he said. 'X may have wanted one day to have children, but that is not the same as wishing for his sperm to be collected and stored when unconscious and dying.'

The Court of Protection exists to make decisions in the best interests of people who lack capacity to decide for themselves. Despite acknowledging X would be 'highly unlikely' to be aware or suffer pain from the procedure, which would involve removing the testis, the judge said: 'the process of collecting sperm from an unconscious individual is an invasion of privacy. It involves extracting sperm in circumstances that a conscious person would find invasive and some might find humiliating'.

Current UK law requires explicit consent for the storage or use of gametes, and only in exceptional circumstances would use or storage without written consent be allowed. Justice Poole explained that if the Court were to routinely allow the collection and storage of gametes where 'there is no or little evidence that the incapacitous, dying person would have consented', this would undermine the law requiring proper consent.

Cases of this type are rare in the UK, and most successful applications have been from the dying person's spouse or partner rather than parents or other family members.

'Those not yet thinking of reproducing, or those trying naturally, may find themselves in this position if death comes too soon' said Natalie Sutherland from Burgess Mee, a solicitor who acted for X's parents (and is also a trustee of PET). 'If you would like your partner or parents to have the opportunity to use your gametes after death, or if you wouldn’t, tell them now and record those wishes in writing.'

X died a few days after the ruling.