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Human Fertilisation and Embryology Authority
11 am
Mr. Joseph Ashton (Bassetlaw): I thank the House and Madam Speaker for giving me the opportunity to raise this complex matter, which is of great concern to everybody in health and especially to my constituent, Mrs. Diane Blood of Worksop.
Mrs. Blood and her husband Stephen were married in May 1991, having been courting for nine years. It was a long-standing stable relationship. Mrs. Blood worked in advertising and public relations and went on to set up her own company under the Government's enterprise scheme, doing public relations work for nursery products. That job involved advertising and matters relating to children, so she has much experience of children and babies.
Mrs. Blood's job was a struggle at first and she dealt with publications such as Baby Magazine; First Steps; Mother and Baby; Parents; Pregnancy and Birth; Practical Parenting; Our Baby; Right Start; Twins, Triplets and More Magazine; Under Fire Contact; You and Your Baby; New Generation; Offspring; Maternity and Mothercraft; Nursery Choice--The Complete Lifestyle Magazine for You, Your Baby and Child and others.
I have read out that list to show that Mrs. Blood was experienced in terms of babies, in knowing what to expect after a birth. She and her husband very much wanted children and they spent much time discussing a possible pregnancy. They had the good fortune to share similar religious beliefs and believed that one of the central purposes of marriage and of human existence is to found a family. They regarded the miracle of modern reproductive medicine in aiding procreation to be of great benefit to society at large. They also believed that the personal choice of parents must be respected and that, except where necessary, the state should not interfere with personal choice in such private and family matters.
Mr. and Mrs. Blood married in the Anglican Church using the traditional service from the 1662 "Book of Common Prayer" because that service places greater emphasis on procreation than the modern alternative service book which is now used. They regarded themselves and their bodies as joined together in holy matrimony and that is why this is a serious debate. It is about a possible mother being prevented by the state from having her husband's child. They were in favour of birth control, although her husband was against abortion. They both thought that artificial insemination was a wonderful way to help unfortunate people to have children.
Mr. and Mrs. Blood discussed at great length how they would be prepared to have a child if they discovered that they had problems in conceiving. They agreed that they would go to any artificial lengths if Mrs. Blood was unable to conceive from her husband's sperm. They saw no objection to the posthumous use of Mr. Blood's sperm, provided that the interests of the child and the other children of the family were properly protected. The arguments in favour of such use struck them as particularly compelling, especially in the case of a married couple since their reproductive material, sperm and embryo, would create a child who would be confident of his or her genetic inheritance from natural, biological parents. They saw no objection to taking sperm from a permanently unconscious or brain-dead husband for his wife's procreative use.
Mr. Blood wished to donate his organs for the benefit of others and there is no doubt that he would have wished that sperm could be taken from him and used by his wife in the tragic circumstance of an untimely death. That would enable his wife to have the child that they had always wanted and it is the main reason for Mrs. Blood wanting her application to succeed: she wanted to respect her husband's wishes as well as her own. They discussed the issue many times, especially because of conversations that resulted from newspaper articles and the magazines that I have mentioned. Such conversations arose because of Mrs. Blood's profession.
The couple talked specifically about newspaper items, about widows who wanted to use the sperm of their late husbands to have a baby, and they both thought that widows were right in wanting to have babies in that way. They did not think that a woman should be compelled to start again by remarrying or have to use somebody else's sperm, nor did they think that her desire to have a child should be confused with thoughts of the reincarnation of her husband.
Mrs. Blood remembers saying that she would not want to remarry if anything happened to Stephen and that she would want his baby. He stated categorically that that was his position. She remembers that, when she went to the hospital, the conversations came back to her when her husband was ill and unconscious. They were undoubtedly strong factors in persuading her to ask the doctors to take sperm from her husband for artificial insemination.
In 1995, Mrs. Blood's career was stable and she and her husband were ready to have a child. From that time they began trying to conceive. They installed new furniture in the spare bedroom to make more storage space and chose the name for a possible baby. Then Stephen fell ill. However, up to that time the topic of having a family was a constant source of conversation. There were some signs that they would be successful and that their desire would be fulfilled because they thought that Mrs. Blood was pregnant.
On 26 February Mr. Blood complained of feeling unwell. Four days later he was dead. At first it was thought that he had influenza, but he was rushed to hospital because it turned out that he had meningitis. While he was in hospital two samples of sperm were taken, and Mrs. Blood wishes to have an artificially assisted pregnancy using that sperm either in the United Kingdom or abroad. Tests have shown that she would have no problems relating to that.
On the evening of Sunday 26 February, Stephen started vomiting and at about 10 o'clock Mrs. Blood rang the duty doctor. He arrived at 11 o'clock and after conducting an examination said that there was a slim chance of meningitis and that Mr. Blood should be admitted to hospital. The ambulance arrived at 11.15 and doctors began treating Stephen with drugs for meningitis. On Monday 27 February the doctors decided to move him from Worksop to a hospital in Sheffield and Mrs. Blood accompanied him in the ambulance.
On Tuesday the doctors finally succeeded in performing a lumbar puncture, which had been attempted several times since Stephen's admission to hospital. At about 6 o'clock the cardiac arrest team was summoned and the doctor told Mrs. Blood that although they had
kept her husband's heart beating, they were unable to sustain his breathing without a machine, and that his condition was not at all good. Mrs. Blood mentioned that they had been trying for a family and that there was a chance that she was pregnant. They asked whether she had been given any tablets to protect her from meningitis and put her on a course of tablets. They knew then that there was a chance that she was pregnant.
Stephen Blood was moved to intensive care on the top floor of the hospital and at that stage Mrs. Blood asked the doctor to find out whether it would be possible to take a sperm sample from her husband for later use because his condition made her fear the worst. She knows now that, even had Stephen recovered, sperm retrieval would still have been sensible because his illness may have rendered him sterile. That would have given them a chance to have a child, even if her husband recovered. The idea of preserving the sperm came to her because of their discussions and because they were trying for a baby, after all the time of waiting. When Mrs. Blood mentioned taking the sperm sample, the doctor did not seem to know immediately whether it was possible.
On the morning of Wednesday 1 March, Dr. Edbrook told her that things had got worse in the night. Hospital staff had tried to get her husband to breathe on his own by withdrawing sedation, but he was unable to do so. At that stage, Dr. Edbrook informed Mrs. Blood that, as for the sperm sample, it was an unusual request, but that the hospital happened to have the foremost expert in the field, a registrar, Mr. Tophill, who was prepared to take a sample. Mrs. Blood asked if the sperm might be infected by Stephen's illness and the expert said that it would not be.
Mrs. Blood discussed the matter with her parents and Stephen's parents. All four agreed that the sample should be taken if possible. Mrs. Blood received counselling in relation to the taking of the sample. She was also warned that there may be some problem in relation to inheritance rights and that the sample might not be successful, but she was prepared to take that chance.
Mrs. Blood went into the room where her husband Stephen was lying unconscious and sat with him. The woman doctor in the room told her more about the possible use of the sperm after Stephen had died. This bit is important. She told her that it would be taken to Jessop hospital first, a maternity hospital in Sheffield, but that Mrs. Blood did not need to use it there. It could be moved to wherever she wished later. The doctor mentioned the need to sign
Before the sample was taken, Mrs. Blood was again specifically asked for consent to the procedure taking place. It was clear to her that it was important and the medical staff in the room were asked to be witnesses to her response. She assumed that she was being asked to give her consent and the consent that Stephen would have given, had he been in a position to do so. She may have been asked whether she consented on Stephen's behalf, but she certainly would have done so.
At 6 o'clock, Mr. Tophill said that the first sample had not been successful, but that he would, if necessary, take another on Saturday when he returned. He was concerned that freezing the sperm might cause its condition to deteriorate. Mrs. Blood then said that she was happy to have the treatment there and then while, technically, her husband was still alive, if that was the best option, but Mr. Tophill said that there were other alternatives, including growing sperm from a sample of testicle tissue.
At that time, Mr. Blood was being kept alive on life support machines. I will go into detail because this is important as to whether this matter falls within the Human Fertilisation and Embryology Act 1990. Mrs. Blood was anxious that the machine should not be turned off until further attempts had been made. Dr. Edbrook said that the second test as to whether Stephen was clinically dead had not yet been done and that it would not be done until at least the following morning, depending on his clinical condition. He said that there was no reason why Stephen should not be kept on the support machines.
Mr. Blood's parents visited him for the last time on Thursday and indicated their acceptance that he was dead. Later in the afternoon, Dr. Edbrook said that the hospital was going to do the second test as to whether Mr. Blood was clinically dead. He then confirmed to Mrs. Blood the good news that the first sample had been much more successful than the hospital had initially thought. He said that it was
If the insemination had taken place while Mr. Blood was alive on the machine, there would have been no problem. Mrs. Blood would have been bearing her husband's child. At that time, she thought that she was pregnant, so it may not have been necessary to use the sperm. That was why she did not agree to use it there and then. Obviously, there was great grief when her husband died and Mrs. Blood resolved to have his child by any means.
No other child's interests in relation to inheritance rights might be affected by the use of the sperm. There is no risk to a possible child's health or to Mrs. Blood's health. The Human Fertilisation and Embryology Authority has not suggested that allowing her to procreate in such circumstances, even in other countries, would offend against the policy of the 1990 Act or moral values, or create a substantial risk of injury to any public interest. Mrs. Blood does not understand what conceivable good reason there might be for preventing her from having her husband's child by combining their reproductive material, simply because he was unable to give his written consent when he was unconscious and dying. He undoubtedly did give his consent to the taking and use of sperm so that his wife might have his child. It is not fair or reasonable, under any law or any circumstances, moral, legal or otherwise, that this woman should be denied the right to have a child by her husband.
The sperm samples are being held at the Infertility Research Trust for Mrs. Blood. She has been invoiced and asked to pay a charge. She has paid the most recent invoice--a charge of £100--for keeping the sperm there since March. Unlike third party donors, who receive
payment for donating sperm, she has had to pay another £250 for obtaining the sperm from her husband. The law looks more and more like an ass.
If Mrs. Blood is permitted to export the sperm, she can have the treatment abroad. She can have it in the European Community, in Belgium, in New York or even in Greece. Insemination can be done there, but this point of law should never have arisen. Who would have objected to the HFEA giving consent for a wife to be inseminated with her husband's sperm? What are its reasons? The way that it objected is absolutely appalling.
Mrs. Blood applied for the sperm to be used. Her application was rejected in May 1996 and, even though the HFEA received an affidavit in June 1996, it still refused to change its mind or to review its decision in any way, shape or form. Mrs. Blood has now been compelled to go to court to seek a judicial review of the 1990 Act. It has cost between £30,000 and £50,000--she does not receive legal aid. She has had to take a second mortgage out on her house to challenge the HFEA's view of the law.
There are 21 members of the HFEA, a quango that has discretion to use its common sense, we would think, without having to be challenged. What is the point of having this quango if we have to go to court? We may as well let people just take a chitty in, as they do to get married in a register office, yet it has refused to use its discretion.
There has been enormous sympathy for Mrs. Blood. Throughout Britain, people's response has been fantastic. Their views are all along the lines of The Times editorial, which said:
During the passage of the 1990 Act, no hon. Member asked, "What would happen if a man went into a coma and died?" It is no one's fault, because none of us has a crystal ball. However, we expect the people who are put in charge of such authorities or privatised industries to use their common sense to act in the public's best interests--especially if the public do not object to a given course of action. Mrs. Blood is facing that type of situation.
Lord Winston--professor of fertility studies at Hammersmith hospital--said that it was "cruel and unnatural" for such a decision to be taken, and that he would consider introducing in the other place a Back- Bench Bill, to which he thought there would be very little opposition, to remedy a situation in which a man can donate
Mrs. Blood has two or three options. She could appeal against the decision--although I know that her legal advisers have asked her to delay such action until we have heard the Minister's reply to this debate. There may be an appeal, depending on what the Minister says. Perhaps the Government could find time for the House to consider an amendment tabled by Lord Winston in the other place. The Act requires only one more phrase, specifying that "in normal circumstances" written consent must be provided by donors. The addition of that phrase would mean that a husband could not give consent in abnormal circumstances--such as if he were in a coma. If the couple were not married, the authority might refuse consent.
The necessary amendment would be very small and would require very little of the House's time. Perhaps the Government could provide one and half hours after 10 pm to change the law, which could be changed in two or three weeks. I should welcome such action, but we must also deal with the matter of Mrs. Blood's costs, which now total between £30,000 and £50,000 and will increase if she appeals against the decision.
Perhaps the Minister will say, "We can find a sympathetic hon. Member who has won the ballot for private Members' Bills." But, as hon. Members who have won the ballot know, it is very difficult to amend the law with a private Members' Bill. Hon. Members can talk out an amendment, and a sufficient number of hon. Members must come on the day to vote in favour of it. The current Session is very short, and there may be only two or three Fridays for private Members' Bills. Moreover, the election is approaching, and an hon. Member who wins the ballot may have a marginal seat and may not wish to introduce controversial legislation. So even that approach is fraught with difficulty.
The Minister must tell us what he intends to do about the situation. Late this morning, I heard on the BBC that the HFEA has said that it will re-examine the case. I do not know what that means. Does that mean that the authority will change its mind and approve Mrs. Blood's request, after the court has said that it cannot? That seems unlikely. Will the HFEA use its discretion to allow Mrs. Blood to take her husband's sperm abroad so that she can be inseminated? I do not know, because it has said only that it will re-examine the case.
"an organ, or in this case semen, donor form".
Mrs. Blood was happy to do so, but no form was ever produced for her to sign, despite her repeatedly asking whether the form had arrived. Later the same doctor said that, because of legal reasons, the hospital was not sure whether the sample could be taken, but Mr. Tophill arrived and confirmed that he was willing to take the sample.
"a million times better than expected".
He asked whether, given that the first sample had proved okay and that the second test had confirmed Stephen to be clinically dead, it would be all right to turn off the machines. Mrs. Blood agreed.
"How can a dead man's interests be harmed by such use"
of his sperm by his wife? It goes on:
"Parliament gave it"--
the authority--
"total discretion on the import and export of sperm and embryos."
The sperm could be used anywhere in the world, so what is stopping it from being used here? As the editorial says:
"The authority should now use the discretion it possesses under the Act".
Baroness Warnock, who chaired the committee whose findings led to the creation of the HFEA, said:
"We didn't think of this kind of contingency"
and that the case was "extremely exceptional". Every hon. Member has sat on Standing Committees making law and has tried to imagine what could happen. We probe and table amendments, not because we want to vote on the amendment, but simply to find out what could happen.
"his kidneys, his lungs, his heart and every other organ without any informed consent, but is unable to give sperm to his wife. That seems ridiculous."
The judge who conducted the judicial review--Sir Stephen Brown, president of the High Court Family Division--said that, although he deeply regretted the law's rigidity and the case had "stirred the emotions", he had no option but to carry out the law and to maintain its dignity. There was tremendous national media interest in the case after he said that and Mrs. Blood lost the case. The Secretary of State for Health was interviewed and said that he had great sympathy for her and that he would do what he could to resolve the situation.
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