A YOUNG widow campaigning for the right to have her dead husband's baby made legal history yesterday when she took her case to the High Court in London.
The 30 year old Midlands woman can be referred to only as Mrs DB.
In the first such case in Britain, her QC, Lord Lester, urged England's senior family judge, Sir Stephen Brown, to quash a refusal by the Human Fertilisation and Embryology Authority (HFEA) to allow artificial insemination to go ahead. The authority insists that sperm extracted from Mrs B's husband, Stephen, when he was in a coma cannot be used because he left no written consent.
Mrs B's challenge was backed by the leading infertility specialist, Lord Winston, and by Baroness Warnock, who chaired the inquiry which led to the establishment of the HFEA.
Though her inquiry's report recommended that posthumous use of a husband's sperm should be "actively discouraged" for fear of causing mother or child psychological problems, Baroness Warnock said in a written statement to the court: "I feel certain we would have seen no ethical or public policy objections to allowing the woman to become pregnant.
Lord Lester said the decision to deny Mrs B the baby she longed for using her dead husband's sperm was unlawful and "seemed cruel and unnatural". She did not understand "what conceivable reason" there might be for preventing her from creating the child she and Stephen had "so much wanted" before his tragic death. Stephen died in March 1995, aged 30, within four days of contracting bacterial meningitis.
Lord Lester said: "This is not a case about disregarding the wishes of the deceased husband. It is a case of furthering those wishes." He accused the HFEA of taking an "unreasonable, harshly oppressive decision which thwarted those wishes because Stephen, who married Mrs B in 1991, had never given his formal written consent for his sperm to be used.
Mrs B has already spent £50,000 on the case and faces a massive legal bill if she loses.
The case continues.