Not In The Best Interests To Collect & Freeze My Sperm?

Where a person is found to lack capacity the Court of Protection may be required to make a decision on their behalf.

In accordance with the Mental Capacity Act 2005 a person will be deemed to lack capacity if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. There is a four-part test that is then applied concerning each specific decision, namely:

If the answer to one or more of the above questions is no, then the person in question lacks capacity. On finding a person lacks capacity in relation to a specific issue the Court of Protection will make a decision based on the best interests of that person.

There is no limit to the decisions the Court of Protection may be required to rule on and decisions could be related to a person’s financial affairs or their health and welfare.

Re X (Catastrophic Injury: Collection and Storage of Sperm)

Case background

The recent case of Re X (catastrophic injury: collection and storage of sperm); V and another v X (by his litigation friend, the Official Solicitor) and another demonstrated the variety of cases the Court of Protection may hear, which involved a decision on whether or not X’s sperm should be collected and stored in order to conceive a child.

In this case, X was 22 years old and became to lack capacity after suffering a substantial stroke. X was in a relationship at the time of his stroke and purportedly stated he always wanted to have children. In order to fulfill that wish X’s parents applied for his sperm to be collected and stored so X could have a child to be raised by his parents.

There were many issues for the Court of Protection to consider in respect of the application. Firstly the Human Fertilisation and Embryology Act 1990 required X’s consent for his sperm to be taken, stored, and used.

Allowing the application would also breach X’s human rights, in particular his right to respect for private and family life. This was combined with the lack of evidence from X so his personal wishes could not be obtained. The Judge noted that whilst X may have commented that he would like to have children this was not the matter in question, instead, the wish X would have had to have expressed would be for his sperm to be collected and stored for this purpose. Accordingly, the application was refused on the basis that X’s wishes could not be properly ascertained.

Comment

The decision, in this case, does not however confirm all future applications for a person’s sperm to be collected and stored will be refused. Instead, there will need to be sufficient evidence that the person would have wanted, and agreed, to their sperm being collected for that purpose.