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Calls for law to keep up with science in sperm destruction cases


Calls for law to keep up with science in sperm destruction cases


"The desire to have a child is a basic human instinct. If that choice is taken from you by the negligence or sheer stupidity of someone else, that is a devastating loss."
Chris Thorne



People who have had cryogenically-preserved sperm, egg or embryos destroyed due to storage failure are being let down by the courts, says medical injury solicitor Chris Thorne. 

 

Chris, partner at Clarke Willmott LLP, says would-be parents can find themselves in legal limbo if precious reproductive tissues are lost through human error, poor administration, or even deliberate malicious acts. 

 

Failure can result from anything from alarm systems being turned off because the sound was too annoying, to want of basic maintenance or the absence of any back-up systems in place. 

 

“It is well established that if you become infertile as a result of physical damage to reproductive organs in an accident or through medical negligence, compensation will be awarded for that loss.  

 

“The same does not apply to the myriad ways one might lose the ability to have a child as a result of failings or deliberate acts in relation to stored tissue, IVF and other scientific advances.  

 

“The failure to provide adequate compensation implies that society at large does not understand, value nor recognise the pain of that loss, compounding the distress. 

 

“The lack of a clear and coherent approach from the courts leaves individuals, who have already suffered considerably, facing uncertainty as to whether they have a legal right to redress.  

 

“Many are left to face something akin to a bereavement without recompense rather than launch into the stress of legal proceedings with no certainty of outcome. 

 

“The law is often outstripped by advances in science, but that is not an excuse for a failure to address the problem with clarity and consistency when the opportunity presents itself.” 

 

As solicitor for successful claimants in the Bristol and Edinburgh sperm destruction cases, Chris says he has a unique insight into the challenges faced by clients and the shortcomings of the legal system.  

 

“Failure to protect precious samples resulting in them being damaged beyond use or destroyed, dashes the hopes of those who were relying on them as the means of starting a family,” he added. 

 

“The desire to have a child is a basic human instinct. If that choice is taken from you by the negligence or sheer stupidity of someone else, that is a devastating loss. 

 

“It is not until you have dealt with families in that situation that you can truly appreciate the emotional damage caused. 

 

“For people who have already endured a laparoscopy and IVF treatment or who have had reproductive tissue taken ahead of chemotherapy, it can be devastating.” 

 

Chris suggests a widening of the criteria to be based on the eventual loss – that is to say the inability to have a child – rather than the initial injury; and that this is not limited to a loss caused by injury. 

 

As solicitor for successful claimants in the Bristol and Edinburgh sperm destruction cases, Chris says he has a unique insight into the challenges faced by clients and the shortcomings of the legal system.  

 

In the Bristol sperm destruction case in 2009, the Court of Appeal ruled that six male cancer patients were told they could claim damages after a hospital freezer broke down and destroyed their frozen reproductive tissue.  

 

Meanwhile in Edinburgh in 2015 men who lost the chance to father their own child after sperm samples that were stored at Edinburgh's Western General Hospital were lost, settled their cases after a legal battle lasting almost 15 years. 

 

Cryopreservation is the process by which any living cells, tissues, organs are protected from decay by storing them at extremely low temperatures. 

 

Chris Thorne heads Clarke Willmott LLP’s personal injury and clinical negligence team. He is an accredited member of the Law Society Clinical Negligence Panel. chris.thorne@clarkewillmott.com 

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