A woman from the UK is in the midst of an extraordinary legal battle to prevent her dead husband’s sperm from being destroyed, in a case that is as legally puzzling as it is heart-wrenching.
Beth Warren, of Birmingham, in the UK, suffered the death of her husband in February of 2012. Her husband, Warren Brewer, died of complications relating to a brain tumor. He had known for some time that he was ill and, as is common among couples facing cancer and radiotherapy treatment, opted to put a sample of his sperm in cold storage in 2005. At the time he made it clear that this sample could be used by his wife in order to have a child after his death and signed several consent forms to make clear that fact.
Obviously, when Mr Brewer died at the age of just 32, Beth Warren did not have much time to think about prospective children — especially because just a few months earlier she’d also lost her brother in a tragic car accident.
Warren unfortunately was unaware that because of a regulation passed in 2009, there is now a strict term limit on how long such samples can be kept in cold storage.
Current rules allow for sperm to stored for up to 55 years but consent must be renewed every ten years. Patients who die obviously cannot renew their consent and the term limit is much shorter.
Brewer has now been told by the Human Fertilisation and Embryology Authority that she has until April of 2014 to decide whether she will use the sperm sample or the sample will be destroyed.
Her husband’s last consent form actually lapsed earlier this year but the authority has been able to use its powers to extend the deadline. Due to the unambiguous nature of the regulations involved however, it now has run out of scope to help Mrs Warren.
“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 is an interesting one for a number of reasons. Focusing solely on Warren’s case, there are a number of peculiarities about the UK’s current laws surrounding the storage of gametes that seem to make these kinds of deadlines rather arbitrary.
The sperm sample is only considered viable until 2015 — ten years after Brewer’s original consent, this despite the fact that properly stored sperm is at least viable for 25 years and possibly longer. Yet, were the sample to be thawed out and used to create embryos, these in turn could be stored for much longer, up to seven years.
The regulations also do not prevent Mrs Warren from seeking treatment abroad using the sample, and places no deadline on when that sample has to be used in that eventuality — quite simply because the regulator admits there is no concrete scientific reason as to why the sample cannot be used beyond either 2014, the deadline given to Warren after her husband’s death, or 2015, which is the normal ten year renewal point.
Warren, in a legal case that will go before the Family Division of the high court early next year, is not arguing that she will definitely use the sample. She concedes that she may in the future meet someone else and choose to have a child with them instead. Also, she believes it is a very weighty decision to have any child from that sample because the child will never meet his or her father, a decision Warren says she cannot be made to rush.
Warren also argues that it is inhumane for the UK’s regulations to in effect pressure her into having her deceased husband’s child or lose that chance altogether simply because of term limits that have no particular scientific reasoning behind them.
In a broader sense, this case speaks to the difficult subject of posthumous (after-death) conception and bioethics, which is the driving force behind such regulations. Like most countries, the UK offers a legal framework that treats the issue conservatively and so imposes strict time limits to guard against any potential ethical violations — for instance, a sample being used that was never meant to outlive the person who gave it.
Yet, in Warren’s case the answer to this quandary is fairly simple: as mentioned above, Warren’s husband signed several consent forms empowering Warren to conceive his child in the eventuality of his death. Warren is fully aware of the ethical implications of bringing a child into the world without its father and is in fact being quite reasonable in asking for more time to decide the issue.
There is cause to think that the HFEA will lose at the High Court. Previous and roughly similar cases, like that of Diane Blood who in 1997 won the right to use her deceased husband’s sperm, would seem to suggest that the court will rule in Warren’s favor. What is needed, however, is a ruling that urges a regulation change to prevent these kinds of heart-wrenching fights from coming up again in the future.
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