A woman of ‘very limited means’ has launched a legal battle for the right to ‘harvest’ her seriously-ill partner’s sperm so that she can have his children, it was revealed today.
The action at London’s High Court is being seen as a potentially important test case, involving a man kept alive medically after a devastating series of heart attacks who could die at any time.
The woman - known as ‘AB’ - says her partner - a wealthy retired investment banker who is being called ‘P’ - would have given his written consent had he known ‘he would be in his current state’.
Her lawyers say she is P’s common law wife and they have been together for several years and had extensive talks about raising a family. P proposed marriage with a ring last year, and she accepted.
AB is challenging a decision of the Human Fertilisation and Embryology Authority (HFEA) preventing her partner’s sperm being retrieved from him and stored for future use, possibly abroad.
High Court judge Mrs Justice Carr discharged a court order AB obtained in an emergency telephone application made to another judge on Christmas Eve allowing a hospital to carry out a harvesting operation pending the outcome of her judicial review application against the HFEA, the UK regulator that monitors the use and storage of human eggs, sperm or embryos.
AB’s lawyers had argued the order was urgently needed because P was subject to a ‘do not resuscitate’ (DNR) order and might die before the hearing, but Mrs Justice Carr ruled this week the order was legally flawed and should never have been made.
Important case: The woman of 'very limited means' has launched a legal battle for the right to 'harvest' her seriously-ill partner's sperm so that she can have his children (file picture)
The judge also directed that the Family Division judge who hears AB’s legal challenge should sit at the start of the hearing as a judge of the Court of Protection - a court set up to safeguard vulnerable people - to consider ‘what is in P’s best interests’ before going on to hear AB’s arguments against the HFEA.
AB’s lawyers told Mrs Justice Carr that P suffered his first cardiac arrest and was taken to intensive care in early December.
A British widow made legal history last August by using her dead husband's sperm to try to conceive a child - even though it is still illegal.
The businesswoman, who is in her early 40s, had his sperm extracted without his consent in an 'act of desperation' while he was in a coma and close to death with a heart condition.
It is against UK law to take, store, transport and use in IVF a man's sperm without his written consent. The woman has since his death undergone fertility treatment abroad.
She obtained an emergency ruling by a judge to have her husband's sperm extracted because he was so close to death. The judge agreed to the procedure being carried out to allow her time to find proof of his consent.
Despite this never being produced, she was later permitted to take the sperm to another country to begin IVF treatment. The case was the first time a British woman went ahead with such treatment without a court hearing.
The HFEA did not oppose her bid, meaning the regulatory body effectively supported her and her doctors in breaking the law. Romania and Cyprus are among a handful of European countries where it is legal to use a man's sperm without his consent in IVF treatment.
This case was different to AB and P in that the HFEA was not asked to give permission before the retrieval of the sperm took place.
Her case follows that of Diane Blood, whose husband fell into a coma after developing bacterial meningitis in 1995 and later died.
By Christmas Eve he had suffered four heart attacks and the DNR order had been issued. AB said she had been advised he was in a ‘permanent vegetative state’ and could die at any moment.
The HFEA told AB’s lawyers that there was no power to issue a special licence to allow the hospital caring for P to retrieve and store his sperm because of provisions of the 1990 Human Fertilisation and Embryology (HFE) Act requiring P’s consent.
The HFEA also said P’s hospital was not licensed to store gametes - the reproductive cells in sperm - and they should not be harvested ‘in circumstances where they cannot lawfully be stored’.
Lawyers for AB are accusing the HFEA of misapplying the law when it decided it did not have power to grant a special licence for storage.
The latest medical update, received by the High Court this week stated that P’s condition had stabilised and the DNR notice had been lifted. But it remained grave, and he relied on a tracheotomy for air and a nasogastric tube for feeding.
The judge refused to make a protective costs order in favour of AB to limit the amount she will be exposed to if she loses her legal challenge.
Her counsel Richard Alomo said she was ‘a person of very limited means’ - and her case raised important legal questions.
Rejecting the application, the judge said the case did raise a question of general public importance, but the information provided to the court about AB’s assets and means was ‘wholly inadequate’ to justify a protective costs order.
A HFEA spokesman told MailOnline today: 'The HFEA has every sympathy with this couple and the difficult situation they find themselves in.
'However, the law on consent to storage and use of sperm is clear: the HFEA has no discretion to grant special permission for sperm to be stored without the person’s consent.
'We have carefully considered this case, in which the HFEA has, for the first time, been asked to give permission to retrieve and store sperm from someone in a coma who has not given the consent required by the law governing IVF.