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V & Anor. v X (By his litigation friend, the Official Solicitor) & Anor.

16 November 2022
[2022] EWCOP 48
Court of Protection
A young man was in a coma with no chance of recovery. His parents wanted to take and freeze his sperm in case he wanted kids later. The judge said no, because there wasn't enough proof he would have wanted that, and it's a big invasion of his privacy.

Key Facts

  • •X, a 22-year-old student, suffered a catastrophic stroke and is in a coma with virtually no prospect of recovery.
  • •X's parents (V and W) applied for a declaration that it would be lawful to retrieve and store X's sperm.
  • •The application was made urgently due to X's rapidly deteriorating condition.
  • •X lacks capacity to consent.
  • •There was limited evidence of X's wishes regarding sperm retrieval and storage.
  • •The HFEA opposed the application.
  • •The Official Solicitor aligned with the HFEA's position.
  • •The application was for collection and storage only, not use of the sperm.

Legal Principles

Best interests of the incapacitated person

Mental Capacity Act 2005 (MCA 2005)

Consent to storage of gametes

Human Fertilisation and Embryology Act 1990 (The 1990 Act)

Requirements for consent under Schedule 3 of the 1990 Act (including written consent and counselling)

Human Fertilisation and Embryology Act 1990

Article 8 ECHR (right to respect for private and family life, including reproductive rights)

European Convention on Human Rights

Outcomes

Application dismissed

Insufficient evidence to show X would have consented to sperm retrieval and storage; interference with X's Article 8 rights not necessary and proportionate; not in X's best interests.

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