Morality, ethics and interference

The emphasis on the pragmatic and practical stands in harsh contrast to Diane Blood's turmoil

What possible social or public policy can be said to justify the "cruel and unnatural" decision to deprive Diane Blood of the use of her dead husband's sperm?

So says the fertility expert Lord Winston, Professor of Fertility Studies at the Royal Postgraduate Medical School, Hammersmith Hospital in west London. His support for Mrs Blood's case seems the rational, commonsense point of view, in line with what large numbers of ordinary people might think was right in a case where a couple in a stable marriage planned to have children.

After all, children are born into far less satisfactory circumstances than the caring environment that would be on offer from Mrs Blood and her extended family. That the wonders of modern medical science were so freely available to Mandy Allwood - whose fertility treatment resulted in her becoming pregnant with octuplets, all of whom she miscarried this month - heightens the sense of injustice.

The alternative view is that the decision to bring what will be a fatherless child into the world is such a serious one that rigorous safeguards must be applied. At least one doctor, and probably others, have described the process of extracting sperm from a dying man as macabre.

The feature that marks out Mrs Blood's case from a series of others where doctors have brought their ethical dilemmas before the courts is the existence of detailed legislation painstakingly drawn up by Parliament after a lengthy committee of inquiry into human fertilisation which reported in 1984.

In retrospect, even that detailed examination of the issues could not anticipate all eventualities. In her evidence to the court, Baroness Warnock, who had chaired the inquiry, highlighted the kind of fine dividing line which no one had foreseen: "In the case of posthumous birth, we envisaged that, as a general rule, sperm would have been frozen with a view to pregnancy before a man became ill, or at the onset of his illness, and that therefore agreement would be presumed, the couple being treated as one [in which case no written consent is required]. We did not even hypothetically consider the present case."

But the Human Fertilisation and Embryology Authority's strict application of a strict law - which was not so unreasonable, said Sir Stephen Brown, the High Court judge who on Thursday upheld the HFEA's decision to block treatment to Mrs Blood, as to entitle a court to interfere with it - is none the less in line with the inquiry's overall approach. It spelt out "grave misgivings" in its report about artificial insemination by a husband (AIH) in one type of situation:

"A man who has placed semen in a bank may die and his widow may then seek to be inseminated. This may give rise to profound psychological problems for the child and the mother ... The use by a widow of her dead husband's sperm for AIH is a practice which we feel should be actively discouraged."

The inquiry accepted that there could be some requests, and emphasised the need for "some finality for those administering estates of deceased persons since, in such cases, posthumous fertilisation could cause real problems of inheritance and succession. Account would have to be taken of issue who might be born years after the death".

That emphasis on the pragmatic and the practical stands in harsh contrast to Diane Blood's human turmoil. Looking at the debates it was clear, Sir Stephen said, that written consent was considered to be a matter of "fundamental importance".

Before regulation was introduced decisions of this kind would have been taken by individual clinicians based on the merits of the case. Some doctors, lawyers, legislators and lay people believe that the difficult medicoethical questions are best dealt with in this way. Experience has proved that this is not the whole answer, and has shown that even where Parliament has not intervened, anguished clinicians frequently turn to the courts to make final, often life or death, decisions. The kinds of case that have gone to law in these circumstances are no less ethically vexed.

Take the series of decisions where, without parliamentary authority, the courts have ruled that a woman has no right to risk her own death and that of her unborn child by withholding consent to a Caesarean birth. While so far confined to cases where it is thought that both mother and baby would die, the rulings represent a trend in which the courts have edged away from the principle that medical interventions cannot be imposed except where the patient is mentally ill or unconscious.

They show that the principle of consent is becoming a much more flexible concept when seeking to preserve life but not, it seems from Diane Blood's case, when seeking to create it

The troubling thread running through it all, which many had hoped had been long buried, is the unmistakable impression that women may not know what is best for them.