4 December 2013
Last updated at 13:46
Beth and her husband Warren
A woman has begun a legal bid to prevent her dead husband’s frozen sperm from being destroyed.
Beth Warren, 28, has been told by the Human Fertilisation and Embryology Authority (HFEA) that the sperm cannot be stored beyond April 2015.
Her husband, Warren Brewer, a ski instructor, died of a brain tumour at the age of 32 in February 2012.
His sperm was stored before treatment, and he made it clear his wife should be allowed to use it posthumously.
I do not know what will happen in the future and I would like to have the choice left open to be able to have my husband’s child as I know he would have wanted.”
The couple, who were together for eight years, married in a hospice six weeks before his death. She subsequently changed her surname to Warren.
“I understand that it’s a huge decision to have a child who will never meet their father, ” said Mrs Warren, who lives in Birmingham.
“I cannot make that choice now and need more time to build my life back. I may never go ahead with treatment but I want to have the freedom to decide once I am no longer grieving.
“My brother died in a car accident just weeks before my husband’s death, so there has been a huge amount to cope with.”
Mrs Warren was initially told that her husband’s last consent form elapsed in April 2013, but has subsequently been granted two brief extensions amounting to two years. The frozen sperm is stored at the CARE fertility clinic in Northampton.
Her lawyer, James Lawford Davies said the 2009 regulations created injustice.
“Common-sense dictates that she should be allowed time to recover from the loss of her husband and brother and not be forced into making such an important reproductive choice at this point in her life.”
Mr Lawford Davies, whose firm is not charging Mrs Warren to represent her, said there were a number of inconsistencies about the regulations.
The sperm has to be used by April 2015, but if it was thawed and used to create embryos, these could be stored for a further seven years.
The time limit also means that Mrs Warren could use the sperm to create one child but not a second.
There is also no restriction on the sperm being exported, which would mean Mrs Warren could be treated abroad in the future, but not in the UK.
The case will be heard next year by a judge from the Family Division of the High Court.
In her legal submission Mrs Warren said: “I am aware that I may decide not to use the stored samples in the event that I meet someone in the future and choose to have a family with him.
Regulations for storage of sperm and eggs in the UK
Patients about to undergo radiotherapy often have sperm or eggs removed as the treatment can cause infertility.
Regulations which came into force in 2009 allow for gametes to be stored for up to 55 years provided that the person who provided the sperm or eggs renews their consent every ten years.
But patients who die are unable to renew their consent, setting a shorter time limit on storage.
“I do not know what will happen in the future and I would like to have the choice left open to be able to have my husband’s child as I know he would have wanted.”
In a statement the fertility regulator said: “The HFEA has every sympathy with Mrs Warren and the tragic circumstance in which she finds herself.
“We have been in discussions with Mrs Warren’s solicitors for some time and each time new information has been presented to us, we have reconsidered the legal situation in as responsive a way as possible.
“However, the law on the storage of gametes is clear and the HFEA has no discretion to extend the storage period beyond that to which her husband gave written consent.”
The case will renew the debate over the ethics of posthumous conception.
In 1997 Diane Blood won the right to conceive a child using sperm from her dead husband.
The Court of Appeal ruled against the HFEA and said that Mrs Blood should be allowed to seek treatment abroad.
But in that case the sperm had been removed when he was in a coma and without his written consent. Mrs Blood went on to have two sons after treatment in Belgium.
In this case Mr Brewer had his sperm stored prior to radiotherapy treatment in 2005, and in subsequent years signed several forms stating that his wife could use the samples.