The end - and now, the rest of my life

The fighting is over – the HFEA have decided not to appeal Mrs Justice Hogg’s ruling. For two years, Warren and I devoted our lives to fighting his brain tumour but we could not win that battle.  For the following two years, I once again put my life on hold, to fight a legal battle to keep the right to be able to conceive his children.  This is a battle that I have finally won, and I don’t have to fight anymore.

After the death of my brother on 9 December 2011 and, two months later, the death of my husband on 9 February 2012, I felt like nothing could ever hurt me again; that nothing else would ever make me cry like I was crying for them.  I was wrong.  On 9 March 2012 I was told that I had six weeks to conceive my late husband’s children. I was a grief-stricken wreck, struggling to put on a happy face at work and would soon be returning to my MSc course to complete the professional qualification I had put on hold when Warren needed me.  HFEA regulations meant that there was nothing to stop me becoming pregnant within weeks of my husband’s death - at a time when I was not emotionally financially or professional ready - but that I could not make this decision at a time in the future when I felt ready.

Posthumous conception was something Warren and I had discussed and to which he had repeatedly given his legal consent – but now that he was gone, I would have to fight to keep this choice.  It was a two year, four day legal battle in which I had to challenge the HFEA, lay bare the most intimate details of my private life, and tolerate cruel online criticism which asserted that I was selfish and should forget Warren and move on.  However, I was also shown the best of humanity – my legal team and their associates, other legal contributors, the clinic storing Warren’s sperm, mine and Warren’s family and friends, the vast majority of the media, and a huge number of members of the public.

Cancer taught me you can’t win every battle, but it also taught me how to give everything when fighting for what is important.  I knew that the law was complex and not on my side.  I continued to work part-time teaching exercise classes whilst I completed my Masters course and started work as a physiotherapist, alongside writing and reading legal emails, letters and statements, attending legal meetings and making legal phone calls – all whilst grieving for those I had lost.  While I had lots of support, in many ways it was a lonely battle, and there were many times when I felt that I couldn’t keep fighting.  It feels like I cried endless tears over this time, but if something is important enough, it is impossible to give up – and so I learnt that it’s not about having the strength to carry on - it’s about carrying on when you don’t have the strength.

I felt like I was on cloud nine when the judgment was delivered on 6 March.  However, this was short-lived when two hours later, the HFEA sought and were granted leave to appeal. I felt heartbroken knowing that all I had won could be taken away by a faceless organisation and that I may have to continue fighting, at a time when I felt like I had given all I had.  For the last two years, the HFEA chose to fight against me in order to protect their regulations, but now they had watched and read extensive media coverage and seen me stand up in court – they knew about mine and Warren’s relationship, they knew who I was, and knew what Mrs Justice Hogg’s ruling meant for my future.  In a personal letter to me post-judgment, they explained that ‘unfortunately, the nature and the complexity of the judgement may have serious consequences for the law and for patient consent, which we are required to uphold and, for that reason, we felt we had no choice but to seek leave to appeal.’  In layman’s terms, this means that it wasn’t purely that I had won but the nature of how I won, and as an organisation, it was ‘unfortunate’ that protecting their regulations must take precedence over my future.

A week later, the HFEA announced by unexpected email that they would not appeal.  I was literally shaking as I read the brief email and, in that moment, I felt so many emotions - joy, relief, elation, shock.  It is unclear whether the HFEA finally found compassion for my situation or whether they realised that they could not overturn the Human Rights Act in The Court of Appeal.  It is however disappointing to me that their press statement blamed the situation on the ‘clinic’s failings’.  It is important to me that it is known that CARE Northampton used all the existing HFEA paperwork and took consent for storage in a way that the HFEA allowed. Furthermore they have been very supportive on a legal and an emotional basis and I am grateful to them.

It is undisputable that the use of gametes (eggs and sperm), and in particular posthumous conception, must be governed strictly by a national organisation.  However, I hope that the HFEA take this opportunity to review the paperwork they provide to clinics, how they govern the clinics, their legislation and how they approach any future cases. It feels amazing to have set a legal precedent which will help future UK widows/widowers and it is a battle that I am proud to have won.  The whole situation has shown me how strong I am and how much I can achieve.

And now, I can move forward with my life - something that my brother and husband cannot do - which reminds me that I am the lucky one.  I fully understand that posthumous conception is not an easy decision and I need time to decide whether this is the right choice for me and for any potential children.  I don’t know what the future holds but Warren wanted to give me this choice and I need to keep it.  I will not close myself off from the possibility of meeting someone in the future even though I know this could affect whether I have Warren’s children. I also know that I may never meet someone and still not opt to have Warren’s children or may unsuccessfully undergo IVF.  In a perfect world, Warren and I would bring up our children together but life is not perfect.  I do know, however, that I have the love and strength to bring up children on my own and that they would know their father through me, our friends and our family.  In my heart, I hope I do have Warren’s children - it is a huge part of the life we planned. I am still grieving for him, and the future together we have lost. But now, it is time to start living again.

A final thank you to everyone who has supported me - most of all, to my legal team: James, Jenni, Catherine and Rose.  Without you, my legal battle would have been impossible.

 

After the judgment

I’m feeling heartbroken after the HFEA have applied and been granted the permission to appeal my High Court ruling. I can liken it to winning the lottery; your mind runs wild thinking about how your life will change but then you are told that someone is going to fight you for your lottery ticket. Or like being told there is a complete cure for your cancer and then being told that this may not be the case. The HFEA have until Monday 17th March at 10.30am to file their appeal application. Thank you to my barrister Catherine for your successful urge that this time be abridged from the 21days the HFEA sought to ten days. I hope with all my heart that the HFEA decide not to appeal.

I felt incredibly nervous on the morning of the 6th March. I genuinely had no idea of what decision would be made and whilst I had not begun to prepare myself for losing, I also had not dared to believe that we may win. I was offered the choice to be told the judgement a few minutes before it was handed down at 2pm in open court, but since my solicitor, James, could not be told, I decided to wait. James has fought this battle with me from the start, he gives me endless support and I knew that, win or lose, I would need him.

In court, with James by my side, as he has been literally and figuratively for the last two years, Catherine in front of me, family and friends behind me and surrounded by the media, Mrs Justice Hogg said:
“Mrs Warren seeks a declaration that it is lawful for the sperm of her husband Warren Brewer who died on 9 February 2012 to be stored beyond 18 April 2015 and for a period of up to 55 years until 18 April 2060 so that it can be used by her for the purposes of conceiving a child or children. I have granted that Declaration.”

The shock, the elation! I hugged James, I looked at Catherine, I turned behind me to hug everyone I could reach. Tears rolled down my cheeks and down those of several others. I turned to look at Mrs Hogg; we smiled at each other and I wished I could have hugged her as well. My High Court win meant everything to me – I lost Warren but he left me this choice, and with Mrs Justice Hogg’s ruling she gave me back my future.

She concluded with:
“May I add my great sympathy for her. She fell in love with a man, cared for him and loved him. He wanted her to have the opportunity to have his children if she wanted. She has suffered an enormous loss. I know she is supported by her parents-in-law. I wish her and Mr Brewer’s parents well, and ultimately whatever her decision may be I wish her and the family much happiness after such a difficult and sad time.”

My head was spinning and I felt unable to prepare a statement, so I decided I would just walk out of court and say whatever came into my head. When I looked through the doors and saw how many media were waiting, I definitely questioned this approach but I have never prepared a single sentence for any of my interviews and anyway, it was too late. I spoke to the whole group and then did several individual interviews. For every interview, I was asked how I was feeling and about the future – the more I spoke about it the more I realised that we really had won and now my future could be whatever I wanted it to be.

Then everything changed. Two hours after the judgement, we were called back to court. The HFEA requested permission to appeal. Mrs Hogg, I believe with a heavy heart, granted this.

In December 2013 when I sought a declaration to High Court that it was lawful to continue the storage of Warren’s sperm, my challenge was against HFEA legislation and their interpretation of this. However, whilst CARE, the clinic storing my husband’s sperm chose to support my battle instead of challenging me, the HFEA opted to actively fight against me. In my battle against a national organisation, the fact that my legal team have all worked pro bono (for free) has meant that I have only had to pay the small court fees. In contrast, the HFEA are a public body which means that the British taxpayer is funding their fight against me. They believe they are acting in the public’s interests but from the phenomenal support I am receiving, I struggle to believe this.

This is such a lonely battle and acts as a constant reminder that I have lost the person that I wanted to grow old with. On Thursday I won my two year legal battle and don’t want to fight anymore. All I can do is wait and hope that the HFEA will use common sense to understand that the right decision was made and their hearts to understand that I have fought for long enough and that I should be free to keep the choice that my husband left me in order to move forward with my life.

I want everyone to know that I appreciate all you have done for me. On so many occasions I have felt like I don’t have the strength I need but you all make me realise that I am not on my own. Endless thank you’s to my legal team, family – both mine and Warren’s, friends, strangers, medical experts, the media and Mrs Justice Hogg. If anything is important to you, you will do everything to achieve it. This is worth the fight.

 

`My situation and view of the High Court Hearing

The 31st January was the most surreal and overwhelming day of my life but I hope this will mark the end of a two year legal challenge. My legal battle started on the 9th March 2012; one month to the day that my husband, Warren, died which was three months to the day that my brother, Edward, died. On this day I was told I had six weeks to become pregnant; the HFEA (Human Fertilisation and Embryology Authority) expressed their sympathy for my situation but asserted that there was no possible way that this time could be extended. I sought legal advice and instructed James Lawford Davies as my solicitor and later, lead barrister Jenni Richards QC and barristers Rose Grogan and Catherine Dobson. My entire legal team are working pro bono (for free) because they believe in my situation and know that a normal person could not afford such expensive litigation.


Warren and I began dating in April 2004 after a first date of Warren taking me for my first ever skiing lesson; I was not a natural! In February 2005 he was diagnosed with a malignant brain tumour (a cerebellar medulloblastoma) and was told that the high-dose cranio-spinal radiotherapy that he would be having would temporarily and potentially permanently affect his fertility. Consequently, he took up the opportunity to bank and store his sperm. Over the following seven years he signed multiple forms which named me as his partner, consented to me using his sperm if he died, consented to the creation and storage of embryos using his sperm, consented to me using his sperm in the event of his death and consented to him being named as the father to children born posthumously (after his death). Months before he died he phoned the clinic storing his sperm, as recorded in their records as ‘Patient wants to confirm we have all the necessary consent forms in place to allow his partner Elizabeth Hyde [my maiden name] to use the sperm to achieve a pregnancy in the event of his death.’


Over the last two years I have been granted two short extensions by the HFEA which were based on new interpretation of existing paperwork. The current storage limit means I should start trying to conceive immediately and would be restricted from having a second child in the future. My legal team and I had hoped to avoid court but this is now our only option to gain further storage. Sperm is allowed to be stored for up to fifty-five years but storage is governed by (understandably) strict guidelines. As determined by the HFEA, the legal problems that prevent ongoing storage of my late husband’s sperm are based on HFEA legislation; a medical professional must state that Warren is prematurely infertile or is likely to become so and that Warren has provided consent for storage past the statutory period of ten years. To clarify the first point, Warren’s death cannot be accepted as proving that he is infertile so we gained a written opinion from Warren’s oncologist. Regarding the latter point, the forms Warren were sent were always time-limited according to the most recent NHS PCT (Primary Care Trust) funding. The clinic always gave Warren plenty of time to renew his consent for storage and told him that if funding policy changed, we could take over payment. The paperwork changed considerably from 2005 to 2012 but what remained consistent is that Warren signed every form he was ever sent and gave me permission to use his sperm in every way he was able.


On 31 January, my lead barrister Jenni Richards presented several arguments to seek a declaration from the High Court of Justice that it is lawful to continue storage of Warren’s sperm. The issue is not whether I am able to use Warren’s sperm but when I must do this by. As asserted by my solicitor James Lawford Davies, the current rules were drafted with the living in mind, creating inconsistencies and injustice when applied in cases such as this one. I do not feel it is appropriate for me to comment on specific legal arguments and to refer to comments made in court but you may look at http://bit.ly/1fzPHtV. I feel that my hearing’s judge, Mrs Justice Hogg, gave my legal team and the HFEA extensive time to present their arguments. I was also called to give evidence. I recognise that my situation is complex which is reflected by Mrs Justice Hogg choosing to reserve her judgement for as many days or weeks needed to fully consider whether it is lawful to make declaration to extend the storage period. This will set a legal precendent and I strongly hope that whether I win or lose, HFEA legislation/ HFEA paperwork and/or how the HFEA govern the actions of clinics is changed which will avoid any UK widow or widower from being in my situation.


I would like to thank my legal team; I am in awe of how Jenni presented our case in court which was supported by background work by Rose and Catherine. I would like to thank Warren’s oncologist Dr Spooner, senior lecturer in Andrology Allan Pacey, Leibniz University Hannover’s Jas Grewel and Nils Hoppe, 39 Essex Street and all other contributors to my legal battle.  Thank you to Diane Blood for her advice and support.  Thank you to CARE Northampton (the clinic storing Warren's sperm)I would like to thank my family, both mine and Warren's, and friends; I could not have done this without you, and especially Samantha Summers for being by my side throughout the happiest and the saddest times of the last nine years.  A huge thank you to Robb Bloomfield who created and manages this website and the twitter account.  Finally, thank you James, my solicitor and friend; you believed in the case from the day I first spoke to you and I literally couldn’t have fought it without you.


Warren and I were together for eight years; we had planned our lives as if we would grow old together but we also made plans for if we didn’t beat cancer. I am asking for more time to be able to fully consider whether having the family that Warren and I had planned is the right thing to do, and if so, I need time to make myself emotionally, financially, professionally, physically and practically ready to do this. I do not know what the future holds but I need to keep the choice that Warren left for me.