Widow's court battle over frozen embryos

Samantha Jefferies
Image caption Samantha Jefferies on the beach where she used to walk with her husband Clive

The widow of a Falklands war veteran is going to the High Court in a bid to prevent frozen embryos they created from being destroyed.

Samantha Jefferies, aged 42, from East Sussex, says the embryos represent her "last chance" of having her dead husband's child.

The couple were undergoing fertility treatment, but Clive, aged 51, died suddenly of a brain haemorrhage in 2014 and his written consent for the storage of their remaining embryos has since expired.

Samantha Jefferies, an occupational therapist, told me: "These are my embryos and I believe I should be allowed to decide what happens to them.

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Media captionClive Jefferies, a Falklands veteran, died before he could renew the agreement to keep the frozen embryos, as Fergus Walsh reports
Image copyright S Jefferies
Image caption Clive Jefferies served in the Royal Army Medical Corps

"If they are destroyed I will go through the whole grieving process for a second time."

Clive Jefferies served in the Royal Army Medical Corps and was on board the transport ship Sir Galahad when it was bombed in the Falklands in 1982, killing 48 men.

After leaving the army he worked as a nurse. The couple married in 2007.

'Piece of bureaucracy'

Embryos, like sperm and eggs can be stored for a maximum of 10 years before couples must renew their written consent.

Mr and Mrs Jefferies had NHS funding for three cycles of IVF which covered the costs of storing embryos for two years.

They'd ticked the box to consent to 10 years embryo storage but were asked by their clinic, Sussex Downs Fertility Centre, to change it to two years because that was the limit of their NHS funding.

The couple signed the forms in July 2013 and had two unsuccessful cycles of IVF.

Image copyright S.JEFFERIES
Image caption Clive and Samantha on their wedding day in 2007

Three embryos remain in storage. In April 2014 Mr Jefferies died suddenly. The couple had been about to have their last cycle of IVF treatment.

In early 2015 she received a letter from the clinic saying that consent for the embryo storage would expire that August.

The law states that embryos cannot legally be stored once consent has expired.

Mrs Jefferies said she did not want to be denied the last chance to have her late husband's child by a "piece of bureaucracy".

"Significant distress"

The Human Fertilisation and Embryology Authority (HFEA) wrote to all IVF clinics in 2012 urging them not to restrict embryo storage to two or three years.

It told them that this policy risked "causing significant distress" in the event of a patient dying and urged them to allow couples to store embryos for 10 years, even if their funding ran out sooner.

This guidance was issued more than a year before Mr and Mrs Jefferies signed their two-year consent form.

The Sussex Downs Fertility Centre has since changed its policy to match that recommended by the HFEA allowing couples to store embryos for 10 years.

Image copyright S.JEFFERIES
Image caption Clive Jefferies visited the Falklands in 2007 to mark the 25th anniversary since the conflict and the loss of the Sir Galahad

The IVF clinic said its previous policy had not been driven purely by financial concerns but also because of the desire to maintain regular contact with couples. It is supporting the case brought by Mrs Jefferies and paying her legal costs.

Solicitor James Lawford Davies, who represents both Mrs Jefferies and Sussex Downs Fertility Centre told the BBC it was "common sense that Samantha should be allowed to use the embryos".

He pointed out that Mr Jefferies had consented to the posthumous use of the embryos, so there was "no question that he wanted them to be available after his death".

He said the IVF sector was still "very focused on form filling and box ticking" and he hoped this case would help change that.

In 2014 a woman won a legal battle to stop her dead husband's frozen sperm being destroyed. Beth Warren had been told that once her husband's written consent expired, his sperm could no longer be stored.

But the court over-ruled the regulations and looked at what had been the intentions of the couple. It agreed to allow his sperm to remain in storage until at least 2023 - many years after written consent had expired.

Mrs Jefferies says she hopes the High Court will be equally sympathetic to her situation.

She told me the remaining embryos were half her genetic material and she should be allowed to decide what happened to them, adding that Clive "would have wanted me to have his child".

An HFEA spokesperson said: "We have made it clear to all clinics that they must not align the storage period a patient consents to, with their payment arrangements.

"While we do not comment on legal cases, we hope that it may be possible to reach a positive resolution to this matter in the near future."

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