DATE PUBLISHED: 17 Sep 2018 LAST UPDATED: 23 May 2022

Wife of brain injured husband is granted permission to use his sperm

In the recent case of Yv A Healthcare NHS Trust & Ors [2018] EWCOP 18 the court granted a wife permission to retrieve and use her husband’s sperm, who had become incapacitated following a motorbike accident, and who was being kept alive on life support with no prospect of ever regaining consciousness.

Before the accident, the couple were in the initial stages of IVF treatment, and were hoping to complete their family, giving their son a brother or sister. The wife needed the court’s permission to retrieve, store and use the sperm since the husband wasn’t able to provide consent himself.

The wife made an urgent application to the court to enable doctors to retrieve her husband’s sperm while he was being kept alive on life support. The judge agreed and said that the husband would have wanted his wife to be able to go on to conceive a child, even in the event of his death.

When couples are undergoing IVF treatment, they sign various consent forms, in which they say whether they are happy for their frozen sperm or eggs to be used in fertility treatment if they die. As this case was dealt with so urgently, there wasn’t time for the court to review all of the clinic paperwork, but the judge decided it was unlikely that the correct paperwork had been signed by the husband. However, the wife recalled that the husband had repeatedly said before his accident that he would
want her to continue with the fertility treatment and to use his sperm if he were to die. Given the circumstances, the judge decided that she was content that the husband would have wanted the wife to retrieve, store and use his sperm.

This very sad case shows how important it is for people who are undergoing fertility treatment to have conversations with their loved ones about how they want their eggs or sperm to be treated if they die. The outcome in this case has offered some hope to a widow whose husband died in incredibly tragic circumstances, enabling her to go on to complete their family as her husband would have wanted.

If you would like any advice on anything to do with fertility law, please contact our highly specialist Family Team who will be able to assist. Call our expert team on 01202 525333 or send us an email enquiry family@ellisjones.co.uk.

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