This urgent, out of hours case considered an application by parents for the collection and storage of sperm from their son who was unconscious in intensive care, and likely to be assessed as brain stem dead within 24 hours.
X was a 22-year-old university student who, having previously been fit and healthy, collapsed whilst playing sport on 22nd October 2022 and suffered a stroke. The application was brought by his parents, who sought a declaration allowing a doctor to retrieve X’s gametes and for those gametes to be stored both before and after his death on the signing of the relevant consents. X’s parents also sought an order to sign the relevant consents in accordance with the provisions of the Human Fertilisation and Embryology Act 1990.
This was an urgent application, heard out of hours on the 3rd November 2022 due to X by then being considered brain stem dead.
Although initially responsive X had deteriorated, undergoing surgery to decompress his brain. However, since 27th October 2022 his pupils had been fixed and dilated and he had no other motor responses. At this time X was intubated and supported by ventilation. It was thought X was now brain stem dead but formal diagnosis was unlikely until the following day. As death was not confirmed the judge, Mr Justice Poole, proceeded on the basis that X was still alive.
With no doubt that X lacked capacity and was not likely to recover capacity to make the decisions under consideration, sections 1 to 3 of the Mental Capacity Act 2005 (MCA 2005) therefore applied. The court needed to consider X’s best interests having regard s4 the MCA 2005.
X’s parents asserted X had always wanted children and had a girlfriend willing to carry his child and that at that stage they were only seeking to collect and store sperm so usage could be considered later. Poole J noted he had no evidence from X’s girlfriend, Y. There was no evidence of any previous discussions between X and either his girlfriend or others about having sperm collected and stored, no evidence of whether they had wished to start a family, and no evidence of the nature of their relationship or indication of the girlfriend’s position in relation to the application.
Poole J gave consideration to Lv HFEA [2008] EWHC 2149 (Fam) where Charles J was not satisfied it was possible to lawfully remove, or authorise the removal of, gametes from a dead person who had not given advance consent. The Human Fertilisation and Embryology Authority also referred to the judgment of Theis J in Jennings v HFEA [2022] EWHC 1619 (Fam) highlighting there was no evidence that X was ever denied the opportunity to consent to posthumous use or storage of his sperm. Further, although X may have one day wanted children, that was different from wanting his sperm collected and stored whilst unconscious and dying and there was insufficient evidence to support the proposition that this was X’s clear wish for his sperm to be stored posthumously and used to give birth to a child via surrogacy arrangements.
With no direct evidence that X ever contemplated this issue, nor any evidence as to his values and beliefs from which to infer what his decision X would have chosen for himself Poole J considered the future impact on other cases of declaring that it was lawful to collect and store X’s sperm in these circumstances.
Having considered all the circumstances, section 4 of the MCA, and considered if interference with X’s Article 8 rights was necessary and proportionate, Poole J decided to refuse the application as not in X’s best interests to make the declarations sought.
In doing so he said: “Assessment of his best interests involves not merely an analysis of the risks and benefits of the proposed procedure, but also of X’s past and present wishes and feelings, his views and beliefs, and his autonomy. His right to privacy and to self-determination in relation to reproduction must be considered. There is no evidence before the court to persuade me that X would have wished for his sperm to be collected and stored in his present circumstances. I cannot accept that there should be a default position that sperm should be collected and stored in such circumstances as being generally in a person’s best interests. I cannot conclude that making the declarations as sought would be in accordance with X’s wishes, values or beliefs.”
The full Case can be found here