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Fertility clinic must release records of dead man’s sperm to his brother, judge rules

BMJ 2020; 368 doi: https://doi.org/10.1136/bmj.m1255 (Published 26 March 2020) Cite this as: BMJ 2020;368:m1255
  1. Clare Dyer
  1. The BMJ

The top family court judge in England and Wales has ordered a fertility clinic to hand over medical records about its use of a dead patient’s sperm to the man’s brother.1

Andrew McFarlane, president of the High Court’s family division, ruled that the unnamed clinic must release records relating to the storage and use of the patient’s sperm and any embryos created using his sperm.

The highly unusual case was heard partly in private, and a reporting restriction order bans publication of the names of the parties and other individuals involved in the case.

The application was made by AB, the brother of the patient, who died two years ago. He believes that his sibling had, five years before he died, made arrangements for the freezing and storage of his sperm by the clinic.

The Access to Health Records Act 1990 provides that, in the case of a dead patient, the personal representative—the executor or administrator of the patient’s estate—or anybody who may have a claim arising from the death of the patient may apply for access to the records. If someone applies on the basis of a possible claim—for example, a negligence action—the act says that access need not be given to any part of the record that is not relevant to the claim.

AB is his dead brother’s personal representative and applied on that basis, but the clinic refused. Its lawyers pointed to BMA guidance issued in August 2014, which states, “It is the BMA’s opinion that under . . . the Access to Health Records Act, no information which is not directly relevant to a claim should be disclosed to either the personal representative or any other person who may have a claim arising out of the patient’s death.”

The Department of Health and Social Care for England, which agreed to make submissions in the case, sided with AB’s lawyers. His lawyers argued that the two categories of applicant were separate and the personal representative did not need to show that he had a claim arising from the former patient’s death.

The department stood by its 2010 guidance that a personal representative “need give no reason for applying for access to a record.”

McFarlane said AB’s lawyers had interpreted the law correctly. He added, “It is of note that the DOHSC, which is the government department responsible for the administration of these provisions, has consistently maintained the same interpretation as that argued for by the applicant and now endorsed by the court.”

He made a declaration that the clinic “is required to provide the applicant with a copy of all records relating to the arrangements for the storage and use of the deceased’s sperm and/or embryos created using his sperm” after redaction to remove information that could identify any third party.

A BMA spokesperson said, “The BMA will consider this judgment carefully and make any changes to the guidance deemed necessary.”

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