England: Court of Protection judge rules parents of student who died of stroke could not extract sperm before death

About this case:

• Citation:
  [2022] EWCOP 48
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mr Justice Poole

At the time of the hearing the relevant person, X, was unconscious in intensive care with no realistic prospect of recovery. His parents, V and W, argued that removing X’s sperm was consistent with his desire to have children in the future. The action was opposed by the King’s College Hospital NHS Foundation Trust, which expressed concerns

The case was heard by Mr Justice Poole. Richard Jones and Melissa Elsworth appeared for the applicants and Stephanie David for the respondent. Nageena Khalique KC appeared as the Official Solicitor on behalf of X.

Discussed wanting children

On 24 October 2022, X collapsed while playing sport and was taken into intensive care. It was discovered that he had suffered brain stem ischaemia, and his condition rapidly deteriorated to the point of formal brain stem death. X had a girlfriend, Y, who had expressed a desire to carry his child, although she did not give evidence before the court.

In a statement provided by the court, V said that X had discussed wanting children of his own with him both in person and via messenger apps and had kept many of his own childhood toys and even his junior golf clubs to give to his own child one day. His evidence was that X was very family-focused and had discussed family life and what kind of father he would be on many occasions.

The information before the judge was that the sperm would be collected via removing one or part of X’s testes and extracting sperm from it. It would have been highly unlikely that X would have been aware of the process or suffer any pain. However, the fragility of his condition required that any procedure be performed quickly.

The NHS Trust did not agree to the procedure and expressed concern that without X’s actual consent it would be acting unlawfully if it collected and stored his sperm. It was argued that if the Court of Protection were to routinely authorise the collection and storage of gametes in scenarios such as this it would undermine the regulatory provisions within the Human Fertilisation and Embryology Act 1990.

Best interests

In his decision, Justice Poole observed: “There is no advance decision in this case nor is there any evidence as to X’s views and beliefs as they might have been relevant to a decision such as this. 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.”

On the individual circumstances of the case, he said: “There is no evidence that X and his girlfriend were in the process of trying to conceive nor that they have tried in the past. There is no evidence of the nature of their relationship. X may have wanted one day to have children, but that is not the same as wishing for his sperm to be collected and stored when unconscious and dying. I cannot know what his wishes and feelings about that decision would be.”

He continued: “I am conscious that if I do not make the declarations sought now, sitting out of hours, it may well be too late for the declarations and the decisions sought by the parents to be made at all or to take practical effect. However, I cannot allow the urgency of the application and the tragedy of the circumstances to dictate the decision of the court.”

Making his final assessment, Justice Poole said: “Assessment of his best interests involves not merely an analysis of the risks and benefits of the proposed procedure, but also of X’s past and present wishes and feelings, his views and beliefs, and his autonomy. His right to privacy and to self-determination in relation to reproduction must be considered. 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.”

He concluded: “The process of collecting X’s sperm is physically invasive and there is no evidence that X would have consented to it or would have agreed to its purpose. I take into account the views of his parents about X’s best interests. However, weighing all the relevant matters in the balance I conclude that it is not in X’s best interests to make the declarations sought. 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.”

The application was therefore dismissed. Following the death of X, Justice Poole expressed condolences to the family.