A legal action over access to a fertility clinic’s private records concerning the storage of a dead person’s “sperm and/or embryos” is being heard by the family court partly in secret.
The highly unusual claim, of which so far only a few details have been approved for public release by the court, is being considered by Sir Andrew McFarlane, president of the family division of the high court.
Lawyers representing the estate of the dead individual, whose gender cannot be revealed, have applied to the court for permission to see the records of a UK fertility clinic under the 1990 Access to Health Records Act.
The legislation established a right for individuals to see their own health records and for others in limited circumstances to gain access.
In considering the legal rights of both someone who has died and possibly of a person who is not yet born, the court is entering into relatively novel legal territory.
On Wednesday the court approved publication of a short statement on the case. It said: “The president of the family division has heard today in private an application concerning an application under the Access to Health Records Act 1990 to a fertility clinic by a personal representative of a deceased’s estate for access to health records regarding the posthumous storage and use of sperm and/or embryos.
“The president made a reporting restrictions order and no further details, including the names of parties and individuals involved, can be reported at present. Judgment has been reserved.”
Last month the Journal of Medical Ethics carried an article suggesting that men in Britain should be able to donate their sperm after death to keep up with the demand from fertility clinics and relieve the pressure on living donors.
In 2014 a 28-year-old widow won a high court battle to preserve her late husband’s sperm, allowing her to have his child. Beth Warren, a physiotherapist from Birmingham, had challenged a storage time limit imposed by the UK fertility regulator that meant she had just over a year to conceive.
