A widow has won a legal battle to keep her late husband's sperm preserved for future use.
Mr Warren Brewer had stored his sperm in 2005 before receiving radiotherapy treatment for cancer. Although he had consented to his wife, Mrs Elizabeth Warren, using his stored sperm in IVF treatment if he died and to being named as any resulting child's legal father, he did not specify to his sperm being stored beyond the ten-year statutory period as required by the law.
The applicable Regulations state that a provider of gametes must give written consent to storage beyond ten years, up to a statutory limit of 55 years. A medical practitioner must also certify that the donor 'is... or is likely to become prematurely infertile' every ten years. Interpreted strictly, this means that such a certificate could only be provided in a man's lifetime and could not be renewed after his death.
For Mr Brewer, the statutory storage period was due to expire in April 2015. To become pregnant, Mrs Warren would need to commence treatment in early 2014 but she told the court how she was not yet ready to have children.
Mrs Warren sought to persuade the judge to make a declaration that it would be lawful for the sperm to be stored beyond April 2015 for up to 55 years (reported in BioNews 734). The Human Fertilisation and Embryology Authority (HFEA) argued that the Regulations and the safeguards provided by them should not be 'diluted', however.
Mrs Justice Hogg ruled in favour of Mrs Warren, saying that a strict interpretation of the relevant Regulations could produce a 'very restrictive outcome' when Mr Brewer's wishes and his intention to give consent was clear. 'Both Mr Brewer and his wife were in agreement. He wanted her to have the opportunity to have his child, if she wanted, after his death', the judge said.
She found that Care Fertility (Northampton) Ltd, the clinic that preserved Mr Brewer's sperm, did not give Mr Brewer enough information, depriving his opportunity to give consent to storage beyond ten years and that this produced 'a great and conspicuous unfairness'.
Mrs Justice Hogg went on to say that the State should not interfere in Mrs Warren's right to make decision as to her future family life protected by Article 8 of the European Convention on Human Rights. She said that there was no conflict of individuals' right in the dispute and that overriding the Regulations would not 'involve large numbers of the population'.
'I must interpret the statutory provisions in a purposive way and if possible interpret those provisions in a way which is compatible with Mrs Warren's Convention right under Article 8 to decide to seek to become a parent by her deceased husband', the judge said. In particular, she said that the Regulations be interpreted to include the words 'was, or may have been likely to become prematurely infertile'.
Mrs Justice Hogg concluded that it was 'right and proper, and proportionate' to declare that Mr Brewer's sperm could be stored up until April 2023, and subsequently up until April 2060 if proper medical opinion that proves Mr Brewer's infertility in life could be obtained.
Speaking to the press outside the courtroom, Mrs Warren said she was 'over the moon' and that the judgment means everything to her.
'Warren was my life. I know we didn't get that life we wanted, so we made this plan. Now I feel I can just move on in my life, with what I want to do, with this chance Warren left me'.
The HFEA is also seeking permission to appeal and says it will consider the implications of the judgment before it decides whether to pursue an appeal.
In a statement, it said: 'We had hoped that the court could find a way for Mrs Warren to store the sperm for longer without having wider implications for the existing consent regime.
However, because the judgment acknowledges that written consent to store the sperm beyond April 2015 is not in place, the judgment may have implications for other cases in which the sperm provider's wishes are less clear'.