July 6, 2022

UK law blurs in posthumous sperm retrieval case

In the UK earlier this month a widow in her early 40s, referred to as Ms H, obtained a court order to get surgeons to extract sperm from her dying partner so that she could bear his child.

Is Britain going Dutch in assisted reproduction? The peculiar attitude of the Dutch towards statutes has allowed practices (like euthanasia) which are clearly illegal in black-letter law to be carried out and even regulated in a kind of shadow legal system.

Earlier this month a widow in her early 40s, referred to as Ms H, obtained a court order in the UK to get surgeons to extract sperm from her dying partner so that she could bear his child. The man, who had suddenly lapsed into a coma after a heart attack, had never given his consent.

Apparently the couple were not legally man and wife, although they had been married in the UK in an unrecognised Islamic ceremony.

Extraction without consent is of questionable legality in the UK. Physically, the procedure is quite brutal and in a conscious person, would be described as assault. As bioethicist Anna Smajdor, of the University of East Anglia, said about a similar case in 2008, “The bodies of dead and dying individuals are vulnerable to assault and exploitation, and the law’s function is to protect them.”

However, a judge agreed to Ms H’s request so that she could search for evidence of her partner’s consent. Although this was never produced, she took the sperm out of Britain to an overseas IVF clinic, perhaps to Romania or Cyprus, where it is legal to use sperm without proof of consent. Transporting the sperm out of the country without consent is also illegal.

The UK’s fertility watchdog, the Human Fertilisation and Embryology Authority, did not contest any of these breaches. This means, as the Daily Mail’s correspondent put it, “the regulatory body effectively supported her and her doctors in breaking the law”. 

James Lawford Davies, a lawyer who is expert in IVF matters, commented: “This decision creates uncertainty. The HFEA is going about things in the wrong way by sidestepping the courts. Either this is against the law or it isn’t – it needs to be clear.”

Michael Cook
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