X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48

Urgent application by parents to extract and store the sperm of their son who was dying following a catastrophic stroke.

At the time of the judgment X was unconscious following a stroke that occurred while playing sport. His parents were seeking a declaration that it would be lawful for a doctor to retrieve X's gametes and lawful for those gametes to be stored. There was no dispute as to capacity nor that X would not recover. Mr Justice Poole had statements from the parents but nothing from X’s girlfriend other than the mother’s report that the girlfriend had expressed a desire to carry X’s child. The HFEA and the OS opposed the application, the HFEA partly because consent is central to effective regulation in this area. 

Mr Justice Poole reviews the MCA and the Human Fertilisation and Embryology Act 1990 and he notes that none of the requirements for consent or use of the gametes set out in that Act could be met. He also differentiates this case from Y v A Healthcare Trust [2018] EWCOP 18, where a couple had been trying to conceive, before concluding that he cannot allow the application stating at [33] 

“There is no evidence before the court to persuade me that X 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……The declarations if made would lead to a significant interference with his Article 8 rights and I am not persuaded that the interference would be necessary or proportionate."

A postscript notes that unfortunately X had died. 

Read the judgment on Bailii