The recent High Court battle by widow Diane Blood for the right to be artificially inseminated with the sperm of her late husband was odd even by the standards of Leigh Day & Co, a firm with a reputation for a case book that has many mentions of probing new fields.
However, while the subject matter of the case was out of the ordinary, Leigh Day partner Richard Stein, who took it on late in the day, says that in many ways it typified judicial review and had much of what makes his practice in this area of the law worthwhile.
What Stein finds fascinating about many judicial review cases is their importance to the both the public as well as to the individuals involved.
“That is the beauty of the judicial review process” he says. “It is so directly applicable to people's everyday life in so many spheres. It is about the law as it applies directly in the real world.”
Stein believes the Diane Blood case typified this view. This was probably best demon- strated by the media attention it attracted. “A lot of cases will draw the media from one quarter or another,” he says. “But this one was particularly fascinating in that there was something in it for all sectors of the media. You had academic journals examining the legal, ethical and philosophical issues, the quality papers examining it in detail, and the tabloids looking at it from a more down-to-earth point of view. They all found an angle whether it was the ethical issues or whether they set it up as a love story.
“It was a classic example of the way the judicial review process is a useful tool when it comes to real life issues.”
The case of Diane Blood centred on the refusal by the Human Fertilisation and Embryology Authority (HFEA) to allow export of sperm from her late husband so that she could be artificially inseminated with it.
The sperm was removed from Stephen Blood as he lay in a coma dying from meningitis in 1995.
Master of the Rolls Lord Woolf, with Lords Justices Waite and Henry, held that while the HFEA had been correct in deciding that insemination could not legally take place in the UK under the terms of the Human Fertilisation and Embryology Act, EU law entitled Mrs Blood to be treated abroad. They found that the HFEA had not been correctly advised in this respect.
In those circumstances, they have ruled that she has a right to be artificially inseminated in Belgium unless there are good public policy reasons against such a move. The HFEA is scheduled to meet later this week to consider the public policy issues.
Some legal circles view the case as a “one-off.” However, it is not. It is known that there is already at least one other embryology matter which has been waiting in the wings for a ruling on the Diane Blood case.
Looking at the Court of Appeal ruling, which overturned an earlier High Court decision by Family Division President Sir Stephen Brown upholding the HFEA stance, Stein says he views it as an important policy pointer from the Court of Appeal.
Stein, who took over the case last June, says: “It indicates that they are saying they want to operate the law in a way which will achieve true justice.”
Counsel for Mrs Blood was Michael Fordham who was ultimately led in the case by Lord Lester QC.