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Another difficult decision for the family courts by John Bolch

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Only a couple of days ago I commented upon the many difficult cases that the Court of Protection has to deal with. In fact, all ‘family’ courts have difficult decisions to make, on a regular basis.

Take, for example, a case now in the news, in which a woman is trying to prevent her late husband’s sperm being destroyed. Think for a moment of the implications of that: if the court allows the sperm to be kept, the woman could have a child using it. If the court orders that the sperm should be destroyed, on the other hand, that child will never be born. Virtually a life or death decision.

The case involves Beth Warren, whose husband Warren Brewer died of a brain tumour in February 2012. He had been diagnosed with cancer some years earlier and in 2005, prior to receiving radiotherapy treatment, his sperm had been placed into storage. At the time he gave his consent to his wife using the sperm samples after his death.

The couple were together for eight years prior to Mr Brewer’s death. They married when he was in a hospice, six weeks before he died, and she subsequently adopted his first name as her surname.

Mrs Warren has been informed by the Human Fertilisation and Embryology Authority, the regulator which oversees the use of sperm in fertility treatment and research, that the sperm cannot be stored beyond April 2015. That’s when Mr Brewer’s consent will expire. The reports I have read are not entirely clear as to why that is the date that the consent expires, as I understand that he could have given his consent for a standard period of ten years in 2005. However, it appears that the consent originally expired this year, but has been extended to 2015 – I’m not sure of the reasoning behind the extension.

A consent can be renewed for a further period of ten years, but obviously this is no longer possible once the donor has died.

Mrs Warren is now applying to the court for an order preventing the sperm from being destroyed in 2015. She says that she needs more time before deciding whether or not to have a child – for one reason, because she wants to pursue her career before having a family.

A number of the reader comments on the BBC news story seem to be against Mrs Warren, suggesting that she should move on and not be allowed to ‘hedge her bets’, but is that right? Surely, her husband would have been happy for his consent to continue, at least until she remarried? I know there is also the issue of the cost of continuing to store the sperm, but my understanding is that this is only a couple of hundred pounds a year. Perhaps Mrs Warren could be responsible for this beyond 2015?

As I said at the beginning, this was always going to be a difficult decision for the court. However, whilst it may be difficult from an emotional standpoint, I’m not so sure that it will be difficult to decide as a matter of law. I am certainly no expert upon the intricacies of the human fertilisation and embryology legislation, but there doesn’t seem to be much if any leeway when it comes to extending the storage period beyond that for which consent was given.

I hope for Mrs Warren’s sake that I am wrong.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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