A widow has won a legal battle to have IVF treatment using her late husband’s sperm after a historic ruling by a panel of Scottish judges.
The woman, who has only been identified as SB, instructed lawyers to go to the Court of Session to obtain the judgment.
The court heard how SB wanted to undergo IVF treatment using sperm taken from seven vials her husband stored approximately 10 years ago.
Her partner – JB – had fallen ill with cancer when he stored the sperm in the hope he may one day start a family.
The pair met, married and decided to have a family. But JB became sick with cancer for a second time.
He, unfortunately, lost his life to the disease in 2019 after he and his wife consulted doctors about starting a family.
The court heard that when JB stored his sperm, he had given written consent to his sperm being used for intrauterine insemination – a method of conception where semen is introduced directly into the uterus.
However, he did not sign the necessary forms needed for his reproductive material to be used for IVF.
It was deemed that this document was suited to men who had partners.
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.
However, by the time an appointment was made, he was receiving palliative care and unable to attend.
Medics discovered the day before he died – when he was unconscious – that he had only completed forms which provided consent to intrauterine insemination.
Doctors told SB that her best chance for conceiving children was with 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 for IVF.
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. They were not represented in the action.
But the Human Fertilisation and Embryology Authority 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.
Now judges Lady Dorrian, Lord Glennie, and Lord Woolman have 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: “The remaining issue relates to the construction of the clause in the will. It is axiomatic that we should start by examining the plain meaning of the words in the context in which they occur.
“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. “
“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.”
“All these factors point unerringly toward JB having given consent to IVF treatment.
“In the circumstances, we are therefore minded to grant the orders sought.”
SB’s lawyer James Lawford-Davies said: “I am delighted that the court has granted SB’s application.
“It’s unfortunate that it was necessary for her to go to court in circumstances where her husband’s wishes were so clear, but the legislation is very rigid and doesn’t easily accommodate the complexities and tragedies of real life”.