The fiancée of a man on life support has launched a legal action in the High Court in a bid to be allowed to take his sperm so that she can have his baby, something she claims the man would have consented to if he were able to, reports The Telegraph.
The High Court case will feature AB, a woman whose name will be kept from the media throughout the court case. AB was engaged to be married to her fiancé known in the case as 'P', an investment banker.
'P' suffered a series of heart attacks in December 2013, which have left him in what is described by doctors as a 'permanent vegetative state', or PVS.
PVS usually results from lack of oxygen to the brain and renders the sufferer awake but entirely incapable of forming thoughts or perceiving their environment. In P's case, he is being kept alive by life-support machines.
His partner, AB, is seeking a High Court ruling to overturn the decision of the Human Fertilisation and Embryology Authority (HFEA) to deny her the right to have P's sperm 'harvested' and stored for her to give birth to P's child in future.
Previous court order
The High Court has so far overturned a decision by a previous judge taken on Christmas Eve to permit doctors to take sperm from P. The judge had heard the case as an emergency over the telephone and had awarded the court order on the basis that AB was concerned that her husband may not live long enough for the necessary legal process to take its course.
Mrs Justice Carr sitting in the High Court said that the decision to award a court order on Christmas Eve was legally flawed and ruled that the hearing will take place in February. She also recommended that the Court of Protection should sit beforehand to consider the best interests of P, before AB's case is heard.
The HFEA have told AB that they have no power to issue a licence to allow the hospital where P is currently being looked after to retrieve his sperm and store it. This is because the Human Fertilisation and Embryology Act 1990 requires the individual's consent for such a process.
The HFEA also ruled that the hospital where P is being looked after is not licenced to store sperm and that in such circumstances harvesting should not be permitted.
AB's lawyers will argue that the HFEA does have the power to issue special licences in some limited circumstances.
AB's case is being viewed as an important test case for other women who find themselves facing the death of a husband or loved one without having had the family they planned together.
Counsel for AB, Richard Alomo, said that there was a public interest in the matter.
"There is clearly a public interest in having this issue settled once and for all. She wants to obtain a decision she genuinely and sincerely believes her partner would want," he told The Telegraph.
In an interview with the Daily Mail, the HFEA sympathised with AB's case.
"The HFEA has every sympathy with this couple and the difficult situation they find themselves in. However, the law on consent to storage and use of sperm is clear: the HFEA has no discretion to grant special permission for sperm to be stored without the person's consent."