In the Name of the Father? Ex parte Blood: Dealing with Novelty and Anomaly
| Date | 01 November 1997 |
| Published date | 01 November 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00119 |
CASES
In the Name of the Father? Ex parte Blood: Dealing with
Novelty and Anomaly
Derek Morgan and Robert G. Lee*
The case of Diane Blood is likely to become a staple in discussions of English
medical law and ethics.
1
It has the necessary ingredients to mark it out as a
stigmata case; it is ethically controversial and raises legal questions which appear
to be essentially contested.
2
One striking feature is its relative novelty.
3
Although
parallels do exist in the United States and France,
4
Blood is the first litigated case
The Modern Law Review Limited 1997 (MLR 60:6, November). Published by Blackwell Publishers,
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840
* Cardiff Law School.
Many friends and colleagues have read or listened to versions of this note, or provided briefs on specific
points. Ideas which it contains were aired at seminars at the University of Wales Law Faculties’ Meeting,
Gregynog in March 1997 and at the University of Liverpool in May 1997. We owe a particular debt to
Tony Downes, Gillian Douglas, Nigel Lowe, Paolo Nebbia, Tamara Hervey, Iain Macdonald, Akas
Manolkidis and Celia Wells. The usual caveat applies.
1R v Human Fertilisation & Embryology Authority, ex parte Blood [1997] 2 All ER 687 (Court of
Appeal), (1997) 35 BMLR 1 (High Court and Court of Appeal); the judgment of the Court of Appeal
(Lord Woolf MR, Waite and Henry LJJ) was given by Lord Woolf.
2 In the sense used by W. Gallie, ‘Essentially Contested Concepts,’ Proceedings of the Aristotelian
Society, N.S. vol. LVI (March, 1956) 180.
3 Mrs Blood’s is not the first attempt to make post mortem use of a partner’s sperm which has given rise to
public difficulties. In 1985, Sonia Palmer’s desire to use the frozen sperm of her deceased husband was
referred to the Infertility Services Ethical Committee of Central Manchester District Health Authority.
The Committee refused her request to use the sperm at the hospital which had previously been treating
her in an infertility programme, but said that she should be allowed to take the frozen sperm elsewhere if
she could find a clinic which would treat her; see The Guardian, 25 September, 1985, 19. Nor is this the
first time in which clinicians have knowingly agreed to assist in the posthumous use of sperm; for an
example pre dating the 1990 Act of the use of the procedure in England & Wales see the affidavit of
Professor Lord Winston, Professor of Fertility Studies at the Royal Post Graduate Medical School,
Hammersmith Hospital, referred to by Sir Stephen Brown in the High Court in Blood ((1997) 35 BMLR
1, 14), which averred that to withhold the sperm here would be ‘cruel and unnatural.’ Shortly before the
Court of Appeal’s judgment in Blood,The Guardian (25 February 1997, at 4) reported that a woman
whose husband had died three years previously was soon expecting to give birth to twins. Described as
the first case of its kind, the woman had been inseminated with sperm stored with her husband’s
‘effective consent’ under the Human Fertilisation & Embryology Act 1990.
4Hecht vSuperior Court of the State of California for the County of Los Angeles (W E Kane, real Party
in Interest) (1993) 20 Cal Rptr 2d 275 (California Court of Appeals); (Supreme Court of California;
petition for review denied and Court of Appeal judgment de-authorised for use as a precedent, 15
January, 1997, Case No S057498); Pires vCentre Hospitalier Re
´gional de la Grave (Tribunal de
Grande Instance de Toulouse, 11 May 1993 Cour de Cassation, 9 January 1996, Dict. Perm. Bioethic,
bull. no. 30; JCP 1996, edition G. II 22666); Parpalaix vCECOS (Centre d’Etudes et de Conservation
de Sperme), (Gazette du Palais, September 15, 1984); (see Garay, ‘Recent aspects concerning
medically assisted procreation in France,’ Council of Europe, Third Symposium on Bioethics,
‘Medically Assisted Procreation and the Protection of the Human Embryo’, Strasbourg, 15–18
December 1996, and Me´metan, ‘Post mortem assisted Procreation according to French Law’ (1997) 4
EJ Health Law 199). For other examples of attempted post mortem recovery of sperm see The
Guardian (21 October 1995, 7) — ‘Dead Men Can Still Have Children’, The Independent (26 October,
1995, 10), and of eggs see The Guardian, 12 January 1995, 11. For a brief consideration of other
jurisdictional approaches see Law Reform Commission of Canada, Working Paper 65, Medically
Assisted Procreation (Ottawa: Minister of Supply and Services, 1992) at 186–87.
which tests the application of domestic legislation to post mortem insemination
where there is no written consent to the taking of the sperm.
5
Additionally, it
exposes the Human Fertilisation and Embryology Authority to a particularly harsh
glare of judicial review.
6
Diane Blood wanted to become pregnant; hardly remarkable in itself — plans for
pregnancy are often celebrated. She wanted to be able to use the process of
artificial insemination to achieve this; in the late twentieth century, this is hardly
unusual either.
7
Biologically speaking, she had all the necessary ingredients, and,
as far as we presently know of her, there is no physical impediment to her plans.
All that stood in her way was the Human Fertilisation & Embryology Act 1990 and
the Authority charged with its enforcement, caricatured during litigation as
inhuman, anti-fertilisation and authoritarian. Stephen Blood’s intent to share
children with his wife appears to have been clearly established,
8
what was missing
was his consent; specifically, and crucially, his written consent.
9
There was an additional hitch; Stephen Blood had been pronounced clinically
dead on 2 March 1995, four days after contracting bacterial meningitis. Shortly
before, Mrs Blood had raised with doctors the question of taking ‘a sample of
sperm by electro ejaculation from her husband who by that time was in a coma.’
10
Two samples were recovered and entrusted to the Infertility Research Trust at a
second hospital for storage. The second sample was taken ‘shortly before’ Stephen
5 Tamara Hervey claims that Blood and the Irish abortion injunction case Attorney General vX and
Others [1992] ILRM 401 taken together ‘. .. show that the provisions of European law may be capable
of undermining national legal provisions . .. concerning the regulation of human reproduction.’ ‘Buy
Baby: The European Union and Regulation of Human Reproduction’ (1998) 18 OJLS (forthcoming);
we are grateful to Dr Hervey for an opportunity to cite from this draft). Given that the Irish Supreme
Court discharged the injunction on its own preferred interpretation of the Irish constitution, Blood is
really the first case effectively to underwrite Hervey’s own conclusion. For discussion of some of the
issues raised by posthumous use of gametes and embryos see John Robertson, ‘Posthumous
Reproduction’ (1994) 69 Indiana Law Journal 1027–1066 and Douglas Cuisine, ‘Artificial
Insemination with the Husband’s Sperm after the Husband’s Death’ (1977) 3 J Med Ethics 163.
6 For the present we put the issue no higher than this. It was always clear that HFEA could be and one
day would be subject to judicial review, but the nature and force of the Court of Appeal’s judgment in
Blood may yet complicate the working of the Authority.
7 Artificial insemination hardly qualifies to be regarded as a ‘new’ reproductive technology. One of the
best brief introductions to the history of assisted conception is Edward Yoxen, Unnatural Selection?
Coming to Terms with the New Genetics (London: Heinemann, 1986) esp 1–63. There is a
characteristically comprehensive consideration of the social and particularly gendered aspects of
fertility in Germaine Greer’s compendious Sex and Destiny: The Politics of Human Fertility,
(London: Martin Secker & Warburg, 1984) passim, and an early consideration of some of the legal
and social issues in the context of contemporary medical practices and etiquette in, predictably,
Glanville Williams’s Sanctity of Life and the Criminal Law (London: Faber & Faber, 1958) at 110–
138.
8 This much, at least, was accepted by Sir Stephen Brown: (1997) 35 BMLR 1 at 8, ‘[Mrs Blood]
submits that although her husband died before insemination could take place nevertheless there was a
common joint enterprise having regard to the fact that the sperm was taken from the body of her
husband although unconscious in her presence and in the context of the fact that they had discussed
their intention to have a child and had specifically addressed the possibility of posthumous artificial
insemination.’
9 The significance of the requirement for there to be a written consent is examined by Sarah Franklin,
‘Please Sign Here: Written Consent, Generative Capacitation and Gamete Storage as Kinship
Technologies’, paper presented at the Storage of Human Gametes and Embryos Workshop,
Departments of Law and Philosophy, Keele University, 5 February 1997; we are grateful to Sarah
Franklin for an early opportunity to see this paper.
10 Lord Woolf [1997] 2 All ER 687, 690. One wonders why the Trust or its advisers did not at this stage
take advantage of the recently fashioned declaratory jurisdiction of the Family Division to address
questions of the legality of such a procedure in respect of one who, like F in Re F [1990] 2 AC 1 and
Tony Bland in Bland, n 13 below, was incapable of giving the necessary consents.
November 1997] Ex parte Blood
The Modern Law Review Limited 1997 841
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