A grieving woman has been told she can’t use her fiance’s frozen sperm for IVF because he didn’t give permission before his sudden death.
Ellie Horne, 22, from Milton Keynes, Buckinghamshire, fears she will lose the chance to have partner Myles’ children after she was blocked from using his semen as the couple hadn’t signed a consent form before he died.
She insists that experts never told the couple about the consent form before his death and she is now preparing for a £60,000 court battle.
Myles died from pneumonia last September after a lengthy battle with leukaemia.
Ellie, who has taken Myles’ surname despite not being married, said the couple had started IVF treatment but it was pushed back due to the pandemic.
Ellie Horne, 22, from Milton Keynes, Buckinghamshire, has been told she can’t use her fiance Myles’ frozen sperm for IVF because he didn’t give permission before his
Ella insists that experts never told the couple about the consent form before his death and she is now preparing for a £60,000 court battle
Myles died from pneumonia last September after a lengthy battle with leukaemia
She said: ‘I am now facing a very long and costly court case to win legality over Myles’ stored semen, something that should be rightly mine.
‘Not only have I lost the love of my life; the man who I built a life with, planned to marry and carry his children, I am at the brink of losing the chance to ever even have our children.’
The couple had been together for three years and Myles froze his sperm after doctors warned cancer treatment could render him infertile.
Myles’ health declined rapidly last year after a series of infections – but Ellie said his death last September was unexpected.
What does the law say?
In the UK, IVF is regulated by the Human Fertilisation and Embryology Act 1990.
When someone consents to their eggs, sperm or embryos being stored, they are asked to decide what should happen if they die or become mentally incapable.
As a general rule, posthumous conception is only possible where there is a written signed consent to post-death storage and use.
However, there are some exceptions. Diane Blood fought a legal battle to conceive using her deceased husband’s sperm, which had been collected without his consent after he was unexpectedly incapacitated by meningitis.
The court ultimately decided that it was an infringement of EU law to deny Mrs Blood her right to seek treatment elsewhere in Europe. Although treatment could not lawfully take place in the UK, the HFEA allowed Mrs Blood to export her husband’s sperm to Belgium where she was successfully treated.
Source: NGA Law
Now, Ellie claims that experts never told the couple that Myles needed to sign a consent form for her to use his sperm in case he died.
Ellie said: ‘As the law stands, he needed to sign a consent form for me to use his sperm after he passed away. Nobody told us this.
‘We had no idea. Had we known, he would most definitely have signed.
‘We’d talked so much about the baby we wanted to have. If it was a boy we planned to call him Mylo, after Myles. If it’s a girl we wanted to call her Nora, after my nan.’
Ellie has ploughed her savings into the court battle and is fundraising £50,000 to help with legal costs.
The GoFundMe page can be found here: https://www.gofundme.com/f/help-Ellie-to-have-her-and-Myles-Children.
Her cases mirrors that of Jade Payne, who is facing a battle to use her dead husband’s frozen sperm to have his baby because of a paperwork blunder made 11 years ago.
Jade, 35, must prove to her fertility clinic that her 35-year-old spouse Daniel, who died two years ago, wanted her to have his child through IVF.
She said TFP Oxford Fertility told her that she will have to win a High Court battle before they can unlock Daniel’s sperm, which was frozen ahead of his testicular cancer treatment in 2010.
The couple, who were together for 10 years, were planning to start IVF and have a child before a brain tumour Daniel had been living with returned with more severity and killed him in December 2019.
The dispute is centred around a ‘technicality’ that Jade’s name is not on Daniel’s original sperm donation documents – despite more recent ones having her signature on them.
Jade, who is a nanny, told MailOnline: ‘I have to prove my husband wanted my child, and there’s no guarantee after doing all of this that I’m going to win.
‘I may get told I can’t use his sperm as I don’t have sufficient evidence of his wishes, but on top of that I may have to fund my own IVF as well.
‘My dog recently had an accident which cost me an arm and a leg in MRI scans, and I expect legal costs for this will run into tens of thousands. Then trying to find a solicitor who actually deals with my unique case is really difficult.’
Jade Payne, 35, has to prove to her fertility clinic that her deceased partner Daniel (both seen on their wedding day in June 2018), 35, really wanted her to have his child through IVF
She added: ‘He first froze his sperm in 2010 because he had testicular cancer for a second time. In 2014 we got a referral to start IVF but then life got in the way and towards the end of 2018 we decided that we would start the referral process again.
‘When Daniel had his operation in 2016 his brain tumour actually changed grade and, with a fast-growing tumour, we didn’t know how long he would actually have and whether it would be enough time.
‘We wanted to start a referral process and family so he would be able to have however long with his child but ultimately that never happened.
‘I got a phone call in October 2019 asking if we were ready to start IVF. I explained that Daniel’s tumour had changed grade and he was terminal so I wasn’t emotionally stable enough to start the process.
‘They said when the time is right I could make contact with them because our funding lasted for 60 months.’
Jade now has to collect letters from family, friends, a GP and some of Daniel’s carers to prove his wish for her to have his children.
She earlier said: ‘I think it’s disgusting that I have to prove anything to the court. He was my husband and I want his child.
‘It’s something we both wanted – we were planning it together and then he died before we got the chance.’
Jade, from Brackley, Northamptonshire, said that she and Daniel had already chosen baby names and decided how to design their nursery.
Daniel (left and right) passed away just three months after finding out that the brain tumour he had been living with since 2006 – a grade 2 astrocytoma – had grown
She said: ‘Having his child would mean the world to Daniel. It’s something we were always going to do.
‘Throughout our relationship he told me “your name is on my sperm so you can use it when you want and it’s yours”.
‘We’d chosen baby names, talked about how we wanted the nursery to look, what pram we’d buy, we knew exactly what we wanted.’
Daniel, a fabricator, was ‘certain’ that he had included Jade’s name on the initial sperm donation document but it emerged after his death that he was mistaken.
The couple had signed documents to start NHS-funded IVF at John Radcliffe Hospital in Oxford in July 2019 and faced no issues with the missing signature.
But when Jade asked about using her husband’s sperm after his death she was told there wasn’t sufficient evidence showing that she was entitled to the sperm.
Jade said: ‘I do understand the legality of not having my name on the original document; it’s something Daniel thought he had taken care of but, even so, he and I have both signed documents since then and he was my husband so you’d think common sense would prevail.’
She added: ‘To have a “mini Daniel” running around would mean the world to me.
‘It’s just a shame I’m going to have to fight for it, especially considering how hard I fought alongside Daniel in his last three months of life.
The couple, who were together for 10 years, were planning to start IVF and have a child before a brain tumour Daniel had been living with returned in full force in September 2019 and killed him three months later
‘If the judge was to say no, it would be heart-breaking. I don’t know what I’d do, probably curl up into a ball, because, in effect, it would be like losing Daniel all over again.’
Daniel passed away just three months after finding out that the brain tumour he had been living with since 2006 – a grade 2 astrocytoma – had grown.
His condition quickly deteriorated and he died two days before Christmas in 2019.
Jade’s fundraising effort for her High Court battle is being supported by Brain Tumour Research.
She said the charity has been ‘100 per cent’, adding: ‘They are amazing at what they do.’
Hugh Adams, head of stakeholder relations for the charity, said: ‘At a time when Jade and Daniel should be planning their family together as husband and wife, Daniel has been taken away by this devastating disease leaving Jade to face the future alone.
‘We will be thinking of Jade as we approach Christmas and the anniversary of Daniel’s death.’
A spokesperson for TFP Oxford Fertility told MailOnline: ‘TFP Oxford Fertility follows the HFEA Act and so we are not able to comment. We always put care and expertise at the centre of what we do.
‘Therefore, with all situations when a potential patient approaches us for help, we provide advice on the current UK regulations which unfortunately sometimes requires a court to give permission for a clinic to support future fertility treatment.
‘In the UK, IVF is tightly regulated by the Human Fertilisation and Embryology Act 1990.
‘Consent is a key part of the legal framework, and no licensed IVF treatment can be lawfully provided unless the necessary written consents are in place from the relevant people.
‘Providing treatment without the required consents could be a criminal offence.’