A woman in Scotland is seeking legal approval to have an IVF baby using sperm stored by her late husband who died following a long-term illness.
The court of appeal heard on Tuesday that the woman, known as SB, wished to undergo IVF using sperm taken from seven vials her husband stored in 2011 before he had treatment for cancer.
While the couple were not together when the man stored his sperm, they married before he fell ill again and his health deteriorated. He passed away early last year.
The case, the first of its kind in Scotland, turns on whether the man gave effective consent for his sperm to be used to create embryos, a procedure performed at IVF clinics. Under the Human Fertilisation and Embryology Act (HFEA), specific consent is needed for the process.
The court heard that while the man had given consent for his sperm to be used for intrauterine insemination (IUI), where sperm are introduced directly into the uterus, he was unconscious and close to death before it was realised that he had not been asked to complete the form needed to consent to IVF embryos.
Acting for the woman, Morag Ross QC told the court that the husband’s will contained a clear statement requesting his sperm be “made available” to his widow “for as long as possible and for as long as she may wish”.
“The wording itself tells us all that we need to know,” she said, adding that the man had set no qualifications on how his sperm should be used, other than his widow should have a say over how long they were stored for.
A statement from the man’s father, which was read out at the hearing, said: “It would be a tragedy beyond belief if this was denied to them.”
The HFEA normally permits sperm to be stored for 10 years, but the limit has been extended by two years for those coming up to the deadline because of the coronavirus pandemic.
The woman is seeking IVF rather than IUI because having embryos created with the little sperm that is available is expected to have a higher chance of leading to a successful pregnancy.
Representing the HFEA, Christine O’Neill QC told the court that the authority was not seeking to be obstructive and was not in dispute with the woman’s view. But she added that the HFEA was “unable to conclude that consent was given”.
The case follows the successful battle in 2014 by Beth Warren, a physiotherapist from Birmingham, to retain her late husband’s sperm for fertility treatment if she wished to have his child in the future. In a case that went to the high court, Warren challenged the storage limit imposed by the HFEA, which left her only a year to conceive.
Her husband, Warren Brewer, had his sperm frozen before starting radiotherapy treatment for cancer and had signed forms saying his wife could use the sperm if he died.
The Scottish court will now consider the evidence and is expected to reach a decision in the coming weeks.