NHS vows to dismiss legal action over frozen sperm loss

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A HEALTH authority is seeking to have a legal action brought by a former cancer patient, who claims he lost the chance to father his own child after a failure in a freezer storing his sperm samples, thrown out.

Lothian University Hospitals NHS Trust is asking the Court of Session in Edinburgh to dismiss the case brought by Richard Holdich who raised a claim for £50,000 damages.

Junior council for the NHS trust, Douglas Ross, told a judge that the action was “one of a number of similar cases” arising out of the failure at a specialist refrigerator at Edinburgh’s Western General Hospital in July 2001.

Mr Holdich, 44, of Beverley, East Yorkshire, was a patient at the hospital in 1992 and was to undergo chemotherapy for testicular cancer.

He was told the treatment he needed to combat the illness would leave him infertile and he should store sperm samples at the hospital to preserve a chance to father a child.

Mr Holdich went along with the procedure with samples stored in liquid nitrogen at a temperature of minus 196C.

In the action it is said: “The pursuer deposited his samples with the defenders in order that he and his wife could undergo IVF treatment using his own undamaged sperm after his cancer treatment had been completed and to preserve his chances of fathering children using his own undamaged sperm.”

But in December 2001 he was sent a letter telling him that a failure had occurred in the freezer containing the samples.

It is said: “As a result of the failure in the freezer his sperm samples were not kept at a correct and safe temperature at which the sperm is considered to be guaranteed as viable.”

He later received a further letter giving “the very bad news that the advice is that the samples should not be used”.

Mr Holdich claims in the action that the health authority accepted the care and custody of his property and they became bound to take reasonable care to keep it in good order.

Her maintains that he suffered distress and psychiatric harm and a loss of autonomy.

The health authority, which is contesting the action, maintains that Mr Holdich did not lose the opportunity of fathering his own child by using the stored sperm as a result of the failure at the refrigerator. It claims the samples remained viable and could have been used for IVF treatment.

“The only two sperm samples from the freezer which have been used in fertility treatment have resulted in conception and the birth of healthy children,” it said.

Mr Ross told the court that Mr Holdich claimed to have suffered loss, injury and damage as a result of damage to his property.

But he argued that properly analysed the semen samples should not be regarded as his property. He said: “There is no property in body parts.”

He said legislative policy has generally been consistent with the common law position that there is no property in body parts.

“There has been a substantial amount of legislation relating to human tissue both pre-dating and post-dating the major scientific advances of recent decades in relation to assisted reproduction,” he said.

“Parliament has had several opportunities, if it so wished, to change the common law to allow for ownership of body parts or substances, but has chosen not to do so,” he said.

The hearing before Lord Stewart continues.