Tragic case in the Court of Protection concerning the retrieval and storage of gametes

Poole J has handed down judgment in Re X (Catastrophic Injury: Collection and Storage of Sperm), following an urgent out of hours application by the parents of a 22-year-old man, X, who suddenly collapsed and suffered from a catastrophic stroke. The application was for a declaration that it would be lawful for a doctor to retrieve X’s gametes and for those gametes to be stored both before and after his death on the signing of the relevant consents. The applicants sought the collection and storage of the gametes so that they might be used in the future for the conception and birth of a child or children.

The case raised fundamental issues about the respect for private and family life, as well as the complex intersection between the consent requirements within schedule 3 of the Human Fertilisation and Embryology Act 1990 and the Mental Capacity Act 2005.

It was not in dispute that X lacked capacity to make the relevant decision, given that he was in unconscious in intensive care at the relevant time.

In considering X’s best interests, Poole J took into account the evidence from X’s father, which was clear that his son wished to be a father and that he was very family-oriented. X’s father also indicated that X’s girlfriend wanted to carry the child (but there was no direct evidence from her). The Judge considered that,“It is one thing to have a consistent and heartfelt desire to be a living, caring father. It is quite another thing to wish to have one’s sperm collected and stored when unconscious and dying, with a view to the possibility of the sperm being used for conception after one’s death, and without having expressed any view when living about how the sperm should be used.”

He distinguished the instant facts from the case of Y v A Healthcare Trust [2018] EWCOP 18, another urgent decision involving a dying man, where the application had been brought by the man’s partner and mother of their child; and the couple had been struggling to conceive after their first child and they had been exploring fertility treatment. Poole J noted that he had no evidence as to the nature of the relationship between X and his girlfriend; and whether they were trying to conceive. He had no direct evidence that X ever contemplated the issue; and observed that “I cannot infer from the fact that he wanted one day to be a father that he would have wanted his sperm collecting and storing with the potential that it could be used for the conception and birth of a child he would never know.”

Poole J determined that the process of collecting sperm from an unconscious person is an invasion of privacy; and that the decision to become a parent or not is covered by Article 8 of the European Convention on Human Rights (“ECHR”). The collection and use of his sperm was an interference with X’s Article 8 rights: see, by analogy, Parrillo v. Italy (Application no. 46470/11), where  “the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life”.

He therefore concluded, applying section 4 of the MCA and considering whether the interference with X’s Article 8 rights was necessary and proportionate, that it would not be in his best interests to make the declarations sought. He therefore refused the application.

You can read the full judgment here.

Stephanie David represented King’s College Hospital NHS Foundation Trust and was instructed by Hill Dickinson.

News coverage of the case includes:

The Times

The Independent