Published 28 September 2020

A woman who sought to undergo in vitro fertilisation (IVF) treatment using her late husbands sperm has succeeded in obtaining an order allowing its use for that purpose despite his not signing the relevant forms.

The petitioner, SB, wished to pursue IVF as it was the most likely method of success for conception in her circumstance. It was discovered the day before her husbands death that the consent forms completed by her husband only applied to intra uterine insemination (IUI).

The petition was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Woolman.

Wrong forms

The will of the petitioners late husband, JB, contained a clause relating to the storage and use of his sperm following his death. JB was advised by his doctor at the onset of the illness from which he died to store his sperm in case he wished to have children in the future. JB died in 2019, with the sperm being collected at a fertility centre approximately 10 years before.

At the time that JB stored his sperm, he did not have a partner. As a result, he was not given the relevant consent form for IVF. JB and the petitioner commenced fertility treatment during the final bout of his illness. Due to the fertility clinic not appreciating that time was of the essence, JB was receiving palliative care at the time an appointment was offered.

At this late stage it became apparent that the forms originally signed by JB were only those appropriate for men without a partner, and JB was unconscious and therefore unable to sign further forms. Affidavits given by the petitioner and a consultant indicated that IVF was the method of treatment most likely to succeed in the couples circumstances.

During JBs final illness, he had his solicitor insert a clause into his will directing that his executors ensure that his sperm be made available to the petitioner for as long as she may wish. It was submitted for the petitioner that the deceaseds will provided the consent required by the Human Fertilisation and Embryology Act 1990.

Answers to the petition were lodged by the Human Fertilisation and Embryology Authority, NHS Grampian, and the Advocate General for Scotland. Opposition was maintained only on the basis that the result would subvert the statutory scheme, and the granting of orders was not opposed if the court was satisfied that the will constituted effective consent.

Expression of wishes

The opinion of the court was delivered by Lady Dorrian. After deciding that the petition was competent, she laid out the requirements for effective consent, saying that they were: (a) It must be in writing; (b) It must be signed by the deceased; (c) It must specify the purpose of use, and be clear that it encompasses consent to the creation of any embryo in vitro; (d) The individual must have been given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and have been provided with such relevant information as is proper; and of the consequences in respect of the possibility of variation or withdrawal of consent; and (e) It must not have been withdrawn.

Applying these criteria to the present case, she said: The terms of the deceaseds will constitute sufficient consent to meet these requirements. It is in writing, it is signed and it has not been withdrawn. The remaining two conditions for effective consent relate to the opportunity for counselling and whether the terms of the clause are sufficiently clear to provide consent for the specific form of treatment that is involved in IVF.

On the construction of the deceaseds will, she said: We regard the following features as important. First, it is a testamentary document in which JB was not only making disposition of his estate but, by this clause, expressing his wish for the future use of his stored gametes. Second, he and his wife had sought and been referred for treatment to enable them to have a child. Third, although it is expressed as a direction to his executors, in reality it is an expression of his wishes.

She continued: For present purposes, we are not concerned with whether the clause could be given testamentary effect. The only question is whether it can be construed as granting the necessary consent. In our view there is no doubt that it can. 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.

On the length of the storage period, she said: Where it is desired to store gametes for a period in excess of ten years for the provision of treatment services there must be written consent of the donor and a medical opinion to the effect that that person was, or may have been likely to become, prematurely infertile. The clause in the deceaseds will, specifying that the material be available to the petitioner for as long as possible, together with the opinion of the treating oncologist as to the deceaseds state of fertility, clearly meet these requirements.

For these reasons, the court granted orders that JB gave effective consent for the storage and use of his gametes for the purpose of IVF, subject to the statutory storage period.

Scottish Legal News Ltd 2020

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Woman successfully obtains order for use of husband's frozen sperm without correct forms - Scottish Legal News