A widow has won a historical legal fight to use IVF treatment using her late husband’s sperm after a ruling by a panel of Scottish judges.
Her late husband identified as JB – died from cancer in 2019, but he had stored sperm in sperm bank before he died in the hope of one day he would have start a family.He left instructions in his will, however, he did not sign the necessary forms before his death.
His widow instructed lawyers to go to the Court of Session in Edinburgh, and bench of judges ruled in her favour.
The man lost his life in 2019 due to cancer, after he and his wife, identified as SB, consulted doctors about starting a family.
The court heard that when JB stored his sperm he gave written consent for it to be used for intrauterine insemination – a method of conception where sperm is introduced directly into the uterus.
Following his marriage, JB made a will which stated that his donated sperm should be donated to his wife for as long as possible and for as long as she may wish.
Doctors, however, wanted JB to follow the process laid down by the law and sign the forms giving permission for his semen to be used in IVF treatment.
By the time an appointment was made, however, he was receiving palliative care and unable to attend.
However, medics discovered the day before he died – when he was unconscious – that he had only completed forms which provided consent to intrauterine insemination.
Doctors have told SB that her best chance for conceiving children is through in vitro fertilisation (IVF) – a different technique in which eggs are removed from the body and fertilised in a lab.
However, JB had not signed the necessary forms needed for his reproductive material to be used for IVF. This prompted her legal team to go to Scotland’s highest civil court to obtain an order which would allow JB’s sperm to be used in this way.
They argued that JB had given permission in his will for his semen to be used for IVF.
Lawyers for NHS Grampian did not oppose the move but the Human Fertilisation and Embryology Authority (HFEA) was unable to conclude that JB gave effective consent for the purposes of the legislation governing the matter.
Their lawyers stated that the will did not make reference to the creation of embryos or to the purpose to which sex cells were to be used.
However, HFEA’s legal team argued that if the court should find the necessary legal requirements were met, the authority considered there would be no impediment for SB to begin IVF treatment.
On Friday, judges Lady Dorrian, Lord Glennie, and Lord Woolman ruled in favour of SB.
Lady Dorrian – who gave the judgement – ruled that the man’s statement in the will meant that he intended his sperm to be used in IVF treatment.
The court ruled that the terms of the dead man’s will amounted to effective consent to the use of his sperm for IVF treatment.
Lady Dorrian wrote: “It is the sort of provision that would only sensibly be made by a man contemplating his death in the near future, and seeking to make his wishes clear.”
News Resource – bbc.com, September 25, 2020