The posthumous use of sperm - a sorry tale

The legal implications of the posthumous use of sperm continue to be shrouded in uncertainty. Samantha Jefferies, a 42-year-old widow, is undertaking a High Court action to prevent the destruction of the frozen embryos that were created for her and her now-deceased husband, Clive Jefferies, so that she can continue her fertility treatment. The couple received NHS funding to have IVF treatment in 2013. They had two unsuccessful rounds of IVF treatment and were due to have a third when Clive Jefferies passed away in 2014, following a sudden brain haemorrhage. Samantha Jefferies wants to continue treatment but is unable to do so because her husband's written consent to storage of the embryos has now expired (see BioNews 857).

Embryos, sperm and eggs can be stored by fertility clinics for up to ten years. Consent to storage can be renewed every ten years with the maximum storage time for embryos and gametes set at 55 years. However, this is not possible if one of the parties dies, as they cannot renew their consent.

A controversial aspect of Samantha Jefferies' situation is that the couple had originally wanted the embryos to be stored for ten years. On the consent form they ticked the box consenting to the embryos being stored for that amount of time, but then crossed this out and ticked the box consenting to two years of storage at the request of their fertility clinic, which was concerned about NHS funding limits.

In 2012 the Human Fertilisation and Embryology Authority (HFEA) suggested that clinics should not restrict storage limits to two or three years as it would cause 'significant distress' if one party were to die. It was suggested that couples should be advised to store their embryos for ten years, even if their funding would run out during this time. This guidance was issued more than a year before Mr and Mrs Jefferies signed their two-year consent form. The Sussex Downs Fertility Centre in Eastbourne, where the couple were having treatment and who are now supporting Samantha Jefferies with legal costs, has since amended its policy to fit the HFEA's recommendations.

The courts previously met the issue of posthumous use of sperm in 1997, when Diane Blood was granted a special direction to have her deceased husband's sperm exported so that fertility treatment could take place. Her husband had not provided consent before his death. Nevertheless, she won the case as the Court of Appeal decided she had the right to obtain medical treatment abroad under European Community law. Diane Blood now has two sons. Her late partner, Stephen Blood, also became recognised as the legal father of her children in February 2003, following further campaigning (see BioNews 236).

In 2014, Beth Warren won the right in the High Court to preserve her dead husband's sperm after she challenged the storage time limit (see BioNews 745). James Lawford Davies, who acted on behalf of Beth Warren, is now representing Samantha Jefferies, who is facing a similar legal battle.

Speaking on ITV's 'This Morning', Samantha Jefferies spoke about the uncertainty surrounding her upcoming court case and expressed her frustration stating that 'it doesn't have to be this complicated or difficult - it seems like common sense'. Clive Jefferies had consented to storage and use of his gametes after his death and had definitely wanted Samantha to have children. Samantha said this 'gives an indication of his thinking at the time and also that he would have consented'. She insists that he would have wanted her to have children.

If the case in the High Court is successful, this will be an important decision, not only for recognising Samantha Jefferies' reproductive liberty but also the reproductive liberty of other women who are sadly caught out by the HFEA's storage time limits if they lose their partner. This decision could potentially help many women in this tragic situation and who may be at risk of losing their last opportunity to have children. The case will also have ethical implications concerning the strength of the right to reproduce or whether there is a right to be a parent.

As the third high-profile reproductive case on the posthumous use of sperm, it will raise wider questions about whether there needs to be more detailed regulations from the HFEA in this area. Whatever the outcome, it will hopefully raise standards in fertility clinics so that they are fully up to date with HFEA regulations so that the mistakes made during Samantha Jefferies treatment will not be repeated.