Judge denies parents use of dead son’s sperm to create a grandchild

Parents from the United Kingdom desperate to keep a part of their suddenly dying son alive challenged the court to preserve his sperm for future use, but were denied after the act was deemed invasive to “his right to privacy.”

On November 3, Sir Nigel David Poole, a justice for the British High Court’s Family Division, was presented with an “out-of-hours” hearing regarding the parents of a 22-year-old university student who had collapsed from a stroke and fell into a coma.

Heard in the Court of Protection for those lacking the mental capacity to make their own decisions, Poole was charged with determining whether or not the parents would be granted their request to preserve their son’s sperm in order to one day attempt to have a grandchild through in vitro fertilization, the Times reported.

According to his ruling, such an act would undermine the Human Fertilisation and Embryology Act 1990 as, “Assessment of his best interests involves not merely an analysis of the risks and benefits of the proposed procedure, but also of (his) 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.”

The legislation from 1990 was an amendment to the Surrogacy Arrangements Act 1985 and specifically aimed at prohibiting certain practices with embryos and gametes and who is to be treated as parents of a child by law.

The father of the young man who had passed leading up to Poole’s Thursday ruling, had made the case that, “My son had a girlfriend, and he has for many years spoken to me about wanting children of his own.”

He further stated, “I make it clear to the court that my wife and I would raise the child, but the girlfriend, who is aware of this application, has expressed a desire to carry his child.”

Despite that, the judge found, “There is no evidence before the court to persuade me that (he) 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.” his ruling continued. “The process of collecting (his) sperm is physically invasive and there is no evidence that (he) would have consented to it or would have agreed to its purpose.”

“I take into account the views of his parents about (his) best interests. However, weighing all the relevant matters in the balance, I conclude that it is not in (his) best interests to make the declarations sought,” Poole found.

Natalie Sutherland, solicitor for the parents and co-founder of In/Fertility in the City, advocates for fertility rights and made the case that this legal battle was a cautionary tale for any who wish to one day have children who’ve not thoroughly declared their intent.

“Those not yet thinking of reproducing, or those trying naturally, may find themselves in this position if death comes too soon,” Sutherland said.

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