A widow has been granted permission to preserve her late husband’s sperm but may have to stage a fight in the Court of Appeal.
Physiotherapist Beth Warren, 28, from Birmingham, yesterday won a High Court battle with the UK fertility regulator.
A judge ruled in Mrs Warren’s favour after the case in London. But Mrs Justice Hogg later gave the Human Fertilisation and Embryology Authority (HFEA) the go-ahead to take the case to the appeal court.
She said HFEA officials would have until mid-March to decide if they would lodge an appeal.
Mrs Warren said a limit imposed by the HFEA meant she had little over a year to conceive using sperm which her husband, Warren Brewer, a ski instructor who died of cancer two years ago aged 32, placed in storage.
HFEA officials say they sympathise with Mrs Warren, who uses her late husband’s first name as her surname, but say Mr Brewer did not give written consent to his sperm being stored beyond April 2015.
Mrs Justice Hogg ruled in Mrs Warren’s favour and said sperm could be stored until 2060.
The judge said Mr Brewer had not given written consent “as required” by regulations. Nevertheless, she said she was satisfied he would have done what was necessary had he been “given the information” and advised.
But she said the HFEA should have the chance to try to overturn her ruling in the appeal court because the case raised a “novel point”.
HFEA officials said Mrs Justice Hogg’s ruling had implications for other cases.
A lawyer for Mrs Warren said she had been “elated” by the legal decision but was “downhearted” about the possibility of an appeal.
Her husband had sperm frozen before starting cancer treatment and signed paperwork saying his wife could use the sperm after his death. He died from a brain tumour two years ago, and regulations meant his sperm were due to be destroyed in April 2015.
The law allows sperm and eggs to be stored for up to 55 years, if consent is regularly renewed. But when Mr Brewer – who was with his wife for eight years – died of a brain tumour in February 2012, consent could no longer be renewed.
The HFEA said the sperm could not be stored beyond April 2015, but lawyers for Mrs Warren told the High Court judge that the regulator was taking an “excessively linguistic and technical approach”.
In her judgment, Mrs Justice Hogg said: “The evidence indicates both Mr Brewer and his wife were in agreement. He wanted her to have the opportunity to have his child, if she wanted, after his death.”
But, she continued, the “written consents provided by Mr Brewer did not specify that his gametes should be stored beyond the statutory period” required by the HFEA.
She ruled that it was “right and proper, and proportionate” to allow the sperm to be kept until at least April 2023.
Mrs Warren said she was “over the moon”.
She said: “It’s beyond words, I hadn’t even anticipated that I would feel that happy about it. I hadn’t let myself believe I would get that outcome because I knew it really could have gone either way.”
She said that at the time of her husband’s illness, a forced deadline was not a good reason to have a child and she needed time to “establish myself emotionally, financially and professionally”.
Mrs Warren said she had not decided what she would do following the ruling.