'We planned a baby before he died. I want that back'

The young widow battling to have a child using her dead husband's sperm vowed to fight on yesterday after the High Court stopped her receiving artificial insemination.

In the first case of its kind, Sir Stephen Brown, President of the High Court Family Division, upheld a decision by the Human Fertilisation and Embryology Authority, to block the treatment because her husband had never given consent in writing.

Diane Blood, known only as DB until a publicity injunction was lifted yesterday, declared: "I think I have as much right as anybody to my husband's sperm. I desperately want his baby. I cannot understand why anybody would want to put me through this."

The sperm was taken from her 30-year-old husband Stephen when he was in a coma after contracting meningitis.

If Mrs Blood had been inseminated before his life support machine was switched off no legal problem would have arisen. Her only consolation yesterday was that Sir Stephen refused an application from the authority for her to pay its costs, saving her an estimated pounds 30,000.

After the judge also gave the immediate go-ahead for an appeal, friends of the couple launched a fighting fund for a Court of Appeal challenge. Mrs Blood, 30,who runs her own small advertising business, has so far incurred pounds 50,000 in legal costs and taken a second mortgage on her home in Worksop, Nottinghamshire. She said: "I still can't believe what I'm going through. It all seems so unnecessary. It is unnecessary. We planned a baby before he died. I just want that back. I don't see why my life as I planned it should have ended."

In one of the few instances where Parliament has legislated in detail on the issue of informed consent, the 1990 Human Fertilisation and Embryology Authority, insists that unless couples are being treated "together", written consent from the husband is required. The couple had specifically discussed artificial insemination but there was nothing in writing.

A distraught Mrs Blood, supported in court by her parents, listened as Sir Stephen said: "I have found this to be a most anxious and moving case." But he agreed with the Human Fertilisation and Embryology Authority that Mrs Blood and her husband could not be viewed as being treated together. "Unhappily, there was no opportunity to commence treatment whilst the husband was conscious and aware of events taking place."

Nor could he say that the authority acted unreasonably in exercising its discretion to block the export of the sperm abroad so that Mrs Blood could be treated in Belgium, Greece or the United States. A third argument, that the export ban broke EU law, was rejected.

Referring to evidence from Baroness Warnock, who chaired the inquiry that preceded the 1990 Human Fertilisation and Embryology Act, Sir Stephen appeared to hint that Parliament might like to consider changing the law.

Lady Warnock had said in her statement: "I feel certain, had the committee considered such a case, we would have seen no ethical or public policy objections."

The fertility specialist Lord Winston, who also gave evidence, warned that the ruling might force hospitals to break the law. "Doctors may take the view that a decision taken in the interests of everybody concerned is going to be overruled by a bureaucracy, and decide not to tell the authorities."

Lord Winston, who is considering whether to introduce a backbench Bill in the House of Lords to change the law, said he found it "unintelligible" that the husband's sperm could not be released for export. "I feel very sorry for Mrs Blood. She is a Christian woman with high moral standards and is being denied the chance of a child."

A dead man's other organs, such as his kidneys, heart or liver, can be used, but Ruth Deech, the authority's chairman, insisted that sperm was entirely different. "We have a regulatory system in this country which is based on respect for human autonomy and dignity. It is central to that that consent must be given in any procedure relating to the production of a future generation."

Life, the pro-life charity, welcomed the decision. "Every child needs a good father. Deliberately to create fatherless children is unacceptable exploitation of them." In this case the father was dying and in a coma when the sperm was taken from him. That was a violation of his dignity and integrity."

John Wadham, director of Liberty, the civil rights group, said: "The legislation was designed to protect the rights of the sperm donor, not to cause misery and injustice because of a technicality."