Widow’s IVF victory

Woman wins legal fight to have IVF using late husband’s sperm – after he was too ill to sign final key form

A WIDOW has won a legal battle to have IVF treatment using her late husband’s sperm after a historic ruling by Scots 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 ten years ago.

Her partner – named only as JB – had fallen ill with cancer when he stored the sperm in the hope he could one day start a family.

The pair met, married and decided to have a family.

But JB became sick with cancer a second time. He 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 it being used for intrauterine insemination – a method of conception where semen is introduced directly into the uterus.

However, he did not sign further forms needed for the stored matewanted rial to be used for IVF. Following his marriage, JB made a will which stated that his donated sperm should be given to his wife for as long as possible and for as long as she might wish. Doctors, however, JB to follow the process laid down by the law and sign the forms giving permission for his sperm 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 (HFEA) was unable to conclude JB gave effective consent for the purposes of the legislation on the matter.

Their lawyers stated that the will did not make reference to the creation of embryos or to the purpose for which the 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.

Yesterday, judges Lady Dorrian, Lord Glennie and Lord Woolman ruled in favour of SB.

Lady Dorrian – who gave the judgment – wrote: ‘First, it is a testamentary document (the will) in which JB was not only making disposition of his estate but 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.

‘All these factors point unerringly toward JB having given consent to IVF treatment.

‘We are therefore minded to grant the orders sought.’

‘Sperm taken from seven vials’