39 Essex Street silk wins frozen sperm legal battle

39 Essex Street’s Jenni Richards QC successfully persuaded the High Court that a widow has the right to save her dead husband’s frozen sperm so that she could have his children in the future. 

Richards successfully argued that Warren Brewer had wanted his wife to have his children after his death, despite having died before consenting to a new storage time limit. 

Mrs Justice Hogg said it was “right and proportionate” for Elizabeth Warren, who lost her husband to a brain tumour in 2012, to keep her husband’s sperm until April 2023 as he had not been given adequate chance to consent to a new time limit.

She said: “I have accepted she has the right under Article 8 to be able to decide to seek to become a parent by her deceased husband”, adding: “Mr Brewer clearly by word and document indicated the wish to give his widow the opportunity to have his child after his death.”

Warren turned to Lawford Davies Denoon, a firm specialising in stem cell regulation, life sciences, IVF and stem cell patenting, for the 31 January hearing and partner James Lawford Davies took on the case pro bono.

In the judgment handed down yesterday (6 March) Hogg J castigated the CARE fertility clinic in charge of his frozen sperm for failing to inform him about his options to consent to time limits beyond seven years.

The clinic appeared as an interested party in the case, represented by Blackstone Chambers’ Jane Collier, who was instructed by Morgan Cole partner Graham Miles.

Although UK law allows sperm and eggs to be stored for 55 years, the forms given to Brewer by the CARE fertility clinic only allowed his sperm to be stored until 2015. The UK fertility regulator states that extended storage cannot be granted without written consent and a medical opinion.

Elizabeth Warren had met Warren Brewer in 2004, a year before he was diagnosed with a fatal brain tumour which killed him eight years later. He had frozen his sperm in order that Elizabeth might have his children after his death but was never given the option to store his sperm for longer than a seven-year period.

Hogg J said: “CARE failed to provide relevant information to Mr Brewer as to the options available to him and the necessary requirements of him, and failed to give him any option other than to consent for a specified number of years less than 10 years.”

She added: “I am satisfied from the written evidence produced on behalf of Mrs Warren and her own oral evidence that had he have known fully of his options and the requirements Mr Brewer would have consented to his sperm being stored for a period in excess of 10 years, up to a maximum of 55 years, and would have obtained the necessary medical opinion required under the 2009 Regulations.”

The judge added that storage should be allowed to continue for 55 years after 2002 if an approporiate medical opinion could be provided about Brewer’s infertility.

The case brings an end to a traumatic period for Elizabeth Warren, who married her skiing instructor husband when he was in a hospice in 2011, just a year before his death. 

Hogg J said ”“If she were able to exercise her rights beyond April/May 2015 it would not violate anyone else’s rights, it would not involve or endanger public safety, national security, or public health or morals. It would be purely a private matter for herself and one in which she is supported by her husband’s family.”

She added: “I add I am most grateful to Mrs Warren’s Leading Counsel, Junior and solicitors who I understand acted pro bono on her behalf.”

The legal line up 

For the claimant Elizabeth Warren 

39 Essex Street’s Jenni Richards QC, Catherine Dobson Claimant, instructed by Lawford Davies Denoon partner James Lawford Davies.

For the interested party (1) Care Fertility (2) Human Fertilisation and Embryology Authority 

Blackstone Chambers’ Jane Collier instructed by Morgan Cole partner Graham Miles