Court of Protection refuses permission for posthumous sperm donation

Mental Capacity 1

In Re X (Catastrophic Inquiry: Collection and Storage of Sperm) [2022] EWCOP 48,  the Court of Protection considered an urgent, out of hours and without notice application brought by the parents of a young man who tragically experienced a sudden stroke at the age of 22. As a result, he was transferred to intensive care where he deteriorated despite surgery. At the time of the hearing the young man was thought to likely have experienced brain stem death but no formal assessment had yet been carried out. Therefore, at the time of the hearing, X was alive but supported by mechanical ventilation, with a very poor prognosis. He was not expected to survive.

Against this heart-breaking backdrop, his parents sought an order that his sperm could be collected and stored in the hope that it may be used in future for the conception and birth of their grandchildren. Such a procedure had to be performed urgently in order to ensure that the gametes could be used in future. Such a procedure would have required partial or full amputation of one of X’s testes; while it was highly unlikely that X would experience any pain, the Court described it as a “clearly invasive” procedure.

As X lacked capacity, the Court was required to determine the application by assessing his best interests. His father provided a witness statement explaining that C had for many years spoken of wanting children, to the extent that he had kept his toys from childhood in the hope of passing them on to his own child. X’s parents made clear that they would be happy to raise the child. X had a girlfriend at the time of his collapse but she was not represented at the hearing. X’s parents’ evidence was that she had expressed a desire to carry his child.

This was not a case in which X had made any advance decision and the Court highlighted that, while there was evidence of his wishes regarding fatherhood, there was no evidence of how he might have felt about his sperm being collected and stored in this way whilst he lay unconscious and near to death.

In L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam), the Court granted a similar out of hours application to collect sperm from a recently deceased man. However, following a full hearing, the Court concluded that it was not lawful to remove (or authorise the removal of) gametes from a dead person in the absence of an effective advance decision authorising this. This explains the difficult position in which the Court found itself: deciding a significant application without evidence from one of the most relevant witnesses, X’s partner. The Court however proceeded in this instance on the basis that it could potentially be lawful for a person’s sperm to be collected whilst incapacitous.

Mr Justice Poole refused the parents’ application. He noted that none of the requirements in Schedule 3 of the Human Fertilisation and Embryology Act 1990 were met, including the requirement that counselling be offered to the person donating their gametes. He noted the risk of a ‘slippery slope’ if he granted the application, as “it would follow that the same declarations might be made in many other cases where parents or other relatives wanted their loved one’s gametes to be collected and stored” [28]. He found that this was not an “exceptional case” in which there was “strong evidence” that X would have wanted his sperm collected and stored so as to be used for their partner to conceive a child. The judge gave weight to the invasive and potentially even humiliating nature of the collection of sperm and found that it would not be in X’s best interests nor a necessary and proportionate interference with his Article 8 ECHR rights.

Poole J noted the different outcome in the case of Y v A Healthcare Trust [2018] EWCOP 18, in which the Court granted the application brought by a dying man’s partner, for collection and storage of sperm. They had a child together and had started to explore fertility treatment to have another child. In the course of this, the couple discussed his sperm being collected and stored and Z, the dying man, consented to the potential use of his sperm after death. In those admittedly exceptional circumstances, the Court granted the application for collection and storage of gametes, noting that this was consistent with Z’s wishes.

This tragic case highlights the extremely high threshold for the collection of gametes from an incapacitous person who has not made an advance decision to that effect. The urgency of these cases make a thorough examination of the incapacitous person’s wishes particularly difficult. It is however noted in a postscript to the judgment that the Court had been informed subsequently that X had been declared dead and, in accordance with his wishes, his organs were donated – enabling him to give life to others albeit not by fathering children.

Miranda Butler is a barrister at Landmark Chambers specialising in public law and human rights. She also teaches at LSE University.

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