Widow wins right to name dead husband as children's father

Diane Blood won her long campaign yesterday to change the law so her dead husband can be named as the legal father of her two children. In a High Court hearing, the Government accepted the need for legislation to allow Mrs Blood, and dozens of women in her position, to alter children's birth certificates to include the name of dead partners.

Mrs Blood's husband, Stephen, died from bacterial meningitis in 1995, but the Human Fertilisation and Embryology Authority refused to allow her to conceive using his sperm. Later, the Court of Appeal gave her permission to have the IVF treatment in a Belgian fertility clinic.

Mrs Blood from Worksop, Nottinghamshire, fought on so her two children, Liam, four, and Joel, seven months, would have their father's name on their birth certificates. She was joined by Joanne Tarbuck, from Higher Kinnerton, near Chester, Cheshire, the mother of five-year-old Jonathan, who had conceived with the sperm of her dead husband, Martin.

Mrs Blood and Mrs Tarbuck, who were not legally aided, claimed the law had rendered their children "legally fatherless for all purposes". Yesterday, the judge hearing the case criticised Alan Milburn, the Secretary of State for Health, for opposing their claim until the women launched their legal action.

Lawyers for Mr Milburn told the judge the minister now accepted that the law was incompatible with the European Convention on Human Rights. Mr Justice Sullivan ordered the Government to pay a proportion of the estimated £20,000 costs, and said there had been "outright capitulation" and a "cave-in" by the Secretary of State immediately after court proceedings were formally launched. The Department of Health had earlier denied any human rights breach.

The judge described the legal tussle between the families and the Government as "not the department's most shining hour". Mrs Blood, who brought her two children to court yesterday, said later: "I am absolutely delighted it is now acknowledged our human rights have been breached for a considerable time, and the children's rights with regard to their birth certificates has also been breached."

After agreement on both sides, Mr Justice Sullivan said: "I am satisfied that, in the particular circumstances of this case, it would be right to make the declaration of incompatibility in the terms sought."

The judge described the declaration as "the key to the door to the rapid resolution of the problem" facing the Blood and Tarbuck families. A private member's bill by Steve McCabe, Labour MP for Birmingham Hall Green, is due a second reading on 28 March, and this could change domestic law to comply with the Convention and the Human Rights Act.

If the Bill fails, as did an earlier attempt to amend the law, the Secretary of State for Health will have to decide whether to adopt a "fast-track" procedure under section 10 of the Human Rights Act to give effect to yesterday's declaration.

Mr McCabe said: "This ruling is a triumph for the grit and determination of Diane Blood, but the law still has to be changed to stop this happening again." The decision is expected to affect 40 to 50 families directly, and a further five to 10 a year where children are conceived posthumously.