By Charles Foster and Rebecca Carter
A “test case” is reportedly being brought in the High Court in February 2014 to determine whether a woman has the right to “harvest” her seriously ill partner’s sperm.
The facts of the case were reported as follows: the woman (AB) and her partner (P) had been in a relationship for several years and got engaged last year. They had “extensive” discussions about having children during this time. P suffered a heart attack and was taken to intensive care in early December 2013. He went on to have a further three heart attacks and entered a “permanent vegetative state”. A DNR order was issued, which has now been lifted. It is allegedly AB’s argument that P would have given his written consent to his sperm being harvested had he known that he would become critically ill. An emergency telephone injunction was reportedly held on Christmas Eve and an order was granted to allow the hospital to harvest the sperm pending the outcome of a judicial review application against the Human Fertilisation and Embryology Authority (HFEA), which is allegedly preventing the retrieval and storage of the sperm.
We spoke to Charles Foster of Sergeants’ Inn Chambers who specialises in medical law for his view on the case being brought as reported:
“The newspaper reports paint the case as a battle between the Human Fertilisation and Embryology Authority (HFEA) and the woman. But, in fact, the HFEA (which is the principal executor of the Human Fertilisation and Embryology Acts 1990 and 2008 and Regulations made under the Acts) has nothing to say about the issue of the harvesting of the semen: the Act and the Regulations are silent about that. Assuming that the woman’s partner is incapacitous, what is done to him is the business of the Mental Capacity Act 2005. The test is this: is the proposed action in the patient’s best interests? Once the semen is extracted, the HFEA becomes interested because then, the semen needs, usually, to be stored before use. For that to be lawful, consent is required.
The relevant provision is s 4(1) of the 1990 Act, which provides that:
(1) No person shall—
(a) store any gametes, or[
(b) in the course of providing treatment services for any woman, use—
(i) any sperm, other than partner-donated sperm which has been neither processed nor stored.
R v HFEA ex p Blood  established that the written consent of the donor was necessary before storage in the UK was lawful. The issue was revisited in L v HFEA , where Charles J held that such a requirement was not incompatible with the right to private and family life under Art 8 of the ECHR. It seems that, in the present case, there is no such written consent.
Perhaps this litigation will say that Strasbourg jurisprudence has moved on since L, that Art 8 is now more demanding and that, accordingly, written consent is unnecessary. Perhaps it will be said that the unconscious partner’s Art 8 rights, as well as the woman’s, are being infringed by frustration of his presumed wishes to have a family. Either of those conclusions would be very significant shifts in the law. Strasbourg has been stoutly protective of the right not to have children without a specific decision to do so: see for example Evans v UK (2006).
There is, too, the issue of the violation of the unconscious partner’s body; that violation, prima facie, engages Art 8.
It will be interesting to see how it is said that it is in the male partner’s best interests for his semen to be harvested. Is it in one’s best interests to have a child whom one will never know, but for whom one wished? It is arguable, but the argument challenges the usual conservative readings of the best interests test.”