Beneath the gloomy gothic archways of the Royal Courts of Justice’s court 33, Samantha Jefferies is fighting the government for the right to have her husband’s baby. Barristers for both sides have made their case and Judge Sir James Munby, president of the family division of the high court, has given her the chance to have the last word. “I’m crossing my fingers that the right decision will be reached at the end, and it’s quite clear what that would be,” Jefferies says, her voice small but calm. “I want my late husband’s children.”
At 42, Jefferies feels she is too young to be a widow, and too young to give up on her dream of being the mother of her husband Clive’s babies. It’s a dream that is tantalisingly close to becoming reality: there are three tiny embryos made from his sperm and her eggs in a freezer in a Sussex clinic, created before Clive died suddenly in 2014. But the Human Fertilisation and Embryology Authority (HFEA) has argued that they are being stored illegally, and should be defrosted and left to perish. For the courts, the embryos are a legal conundrum. For Jefferies, they are her last chance of having the family she always wanted.
Ever since Diane Blood took on the HFEA and in 1997 won the right to conceive her husband’s children after his death, a succession of British women have gone to court to claim the same right. Posthumous conception is legal, but also a legal minefield; many of these women have discovered too late that they don’t meet the HFEA’s stringent requirements. They have chosen to challenge a powerful government body when they are at their most vulnerable, often in the full glare of a critical public. Whatever the outcome, their own futures are changed irrevocably by coming to court. Each case sets a legal precedent upon which the next can build. It is in this context that the widows have come to support one another, in what would otherwise be an isolating and bruising battle.
There are no friends or family members in court with Jefferies today, but behind her sits Beth Warren, the only person Jefferies invited. Two years ago, Warren was sitting in Jefferies’ place, beside the same legal team, about to learn that she had won her fight to keep her late husband’s sperm in storage, against the wishes of the HFEA.
Warren is listening intently on the public benches, totally still with her hands in her lap. She is dressed entirely in black, apart from the deep pink necklace that hangs across her collarbones, made from her husband Warren’s ashes. Shortly before he died of cancer aged 32, when she was only 26, she took his first name as her last, so that their names would be combined in hers for ever.
The judge reminds Jefferies she doesn’t have to have her case heard in open court: she has a right to anonymity. She doesn’t even need to say anything, because “her evidence won’t be crucial” to his decision. But Jefferies wants to be able to appeal directly to him, to tell the world what a remarkable man her husband was. She smiles at the court with the quiet confidence of someone who would never seek to be the centre of attention but is convinced common sense is on her side.
When she tells me about Clive, she describes a magnetic, warm man, a Falklands war veteran who served in the Royal Army Medical Corps and was aboard the Sir Galahad when it was bombed and sunk in 1982, killing 48 men. In the 15 years they were together, he introduced her to rock stars, royalty and wild tigers in Nepal.
“You know how some people just have really interesting lives?” she says with sparkling eyes. “Clive was destined to have an interesting life. He had a great spirit of adventure and curiosity. He was so interested in life, and people, that these kinds of situations just got attracted to him. He got invited to do lots of things because he just had a nice aura around him. He was kind, compassionate, he’d do anything for anybody. He had a child named after him: he delivered babies as part of his midwifery course when he was training to be a nurse, after being a medic in the Falklands.” She pauses for breath. “He was quite a guy.”
In the pre-trial reporting of her case, Jefferies found some of the online comments hard to read. “Some people were saying, ‘Why don’t you just go out and get yourself pregnant? That’s what you could do.’ But, actually, if you knew my husband, you’d know that no one could ever compete. Why would I want some random person to be the father of my children?”
They had wanted children for years, and had had two cycles of IVF. They had everything planned. “We were setting ourselves up to have 2.4 children, the Volvo and the labrador, that kind of scenario.” They bought a home in Winchelsea Beach, East Sussex, because of the nearby schools and space for children to run, play, get dirty. They’d chosen names. Clive was going to do the tea and school run, while Jefferies went back to work; she had just retrained as an occupational therapist and he wanted her to be able to develop her career. “And then it all just stopped, on 19 April 2014, between 12 o’clock and 12.15.”
On an unremarkable Sunday afternoon, Clive suffered a massive brain haemorrhage and died in front of her. She tried to resuscitate him, but he was gone. He was 51.
In March 2015, Jefferies received a letter from their clinic, the Sussex Downs Fertility Centre. It said Clive’s consent to the storage of their embryos had expired. She had until 11 August 2015 to get pregnant, or her embryos would be allowed to die.
“I couldn’t even guarantee that I would have a menstrual cycle within the time frame they were suggesting. I felt they were setting me up for failure: the embryos were just going to perish.” It was a double grief at a time when she was already raw. “I was in no emotional, psychological, physical, financial, social or biological state to have a baby. There was no way my body could cope with the pregnancy.” At first she panicked. Then she took the HFEA and the clinic to court.
Conceiving through IVF comes with a blizzard of paperwork given out by every clinic and regulated by the HFEA. As far as Jefferies was concerned, they had filled everything in properly: Clive had agreed to their embryos being stored for the standard 10 years allowed by the HFEA, and had even given specific consent for her to try to conceive their children after his death. But they had NHS funding for only two years of treatment, and somewhere at the clinic their form had been amended so that consent was given for embryos to be stored for two years instead of 10. A ticked box had been crossed out and another one ticked instead.
The clinic has since changed its policy and come out in support of Jefferies’ right to conceive, and is paying her legal bills. But if Samantha wins, it won’t be because of any rights she might have to Clive’s children, or even any right to keep her own embryos alive; it will be because the change to the forms wasn’t properly initialled or countersigned. It all comes down to one messy tick box.
Between 1991 and 2013, more than 240,000 babies born in the UK were conceived by IVF. The number of IVF cycles taken by women in the UK is growing by 5% every year. With every new scientific development to assist conception, and every new permutation of family – from surrogates to transgender families to three-parent babies to donor-assisted conception – the law is struggling to keep up with the pace of social and technological change. Fertility law is a rapidly expanding field, and specialists such as Jefferies’ and Warren’s solicitor, James Lawford Davies, have an ever-growing caseload. They are working with legislation often drafted at a time when admitting to fertility treatment was taboo. Judges tend to assume people coming to court won’t want their cases heard in public. If they waive their anonymity they might win widespread support and sympathy, but they also risk public abuse, as well as letting the world know about their most intimate details and plans.
Jefferies addresses the judge for no more than a couple of minutes. Warren seems to hold her breath. “My husband was a very unique and special man,” Jefferies says. “I am 100% confident that he would love me to have children from those embryos that are in storage.”
The judge straightens in his chair. “I am just so sorry that people like you should end up in court because of mistakes made by other people,” he says, gently. “I’m going to grant the decision you want. You’ve got what you came to court to get.”
Outside, a gaggle of reporters surround Jefferies. She and Warren look at each other with tears in their eyes. “It’s overwhelmingly fantastic – it’s just brilliant,” Jefferies beams. “It gives you faith in the law. That they can see me and not a form.”
“When are you going to try for a baby?” someone shouts.
Jefferies looks startled. “I don’t have a plan,” she says. “I never wanted any decisions about pregnancy to be so public – I’m a bit worried about what’s going to happen with my employers. But I’d love to be a mum.”
Two weeks later, we meet at Jefferies’ home. Every surface is stacked high with plants and souvenirs from long-haul travels. A mottled cat mews in the background. On a shelf behind the sofa there is a photograph of Clive in uniform, almost crowded out by the medals that share the frame. He is looking across his shoulder to the camera with the hint of a gentle smile. He died a few metres away from where we are sitting, in the bedroom across the hall.
It’s the day the written judgment of Jefferies’ case is published, and reading it has left her with mixed feelings. “It was quite painful, because it mentions Clive and Samantha, and Samantha and Clive, and I know that’s probably going to be the last time we’re going to be mentioned together.” She stares into the distance with wet eyes. “In law, we are together. There’s something really romantic and comforting about that. We’re case law together now. But it’s the final closure: he’s not coming back, this is it, and I’m going to have to think about having children without him.”
While Warren and Blood took on the HFEA for the right to keep their husbands’ sperm in storage, Jefferies was fighting to stop her already created embryos – the beginnings of their family – from being left to die. I wonder if that made her battle particularly poignant, but she brushes off my question with surprising pragmatism. “I would feel a lot more relaxed if Clive had a whole load of sperm stored. I’d be contented. Now I’m faced with the fact that I have three chances to conceive, and that’s it.”
She is planning to move her embryos out of the local clinic, which supported her in court but was ultimately responsible for the paperwork that landed her there. “This is sleepy town down here. I want to try and conceive with someone who wants to prove themselves, who’s ambitious and totally focused on getting the best out of these three little chances.”
I’m not sure I’d like to be the child of a parent who has fought so hard for my right to exist, I say: it would be hard to be a stroppy teenager when my mother has gone through so much, just for me.
Jefferies laughs: “I know that they’re definitely going to be grateful. It’s a good emotion to feel. And there’s nothing wrong with being a stroppy teenager. They can rest assured that I am never going to leave them, and I’ll take care of them the best way possible. It’s being overly protective that I’m worried about – not letting them take risks.”
She has tried dating again. “I’m upfront with guys as soon as I meet them and it’s a bit too full-on: ‘I’ve got embryos in storage, I’m going to court to enable them to be kept, and I’m going to have children within the next three years.’ It goes down like a lead balloon.” She laughs, then pauses. “The hard reality of taking my decision is that there’s a strong possibility I’ll always be on my own.”
Last year, she went to Birmingham to meet Beth Warren and ended up talking into the early hours and staying over at her flat. “We had a glass of wine and talked it through, and she taught me to be aware of my expectations. It gave me more confidence. She put me in touch with Diane Blood, who was really good and helpful. We talked about what to expect in court and from the press. She’d appealed, and I was preparing myself for what would happen if my case went to appeal. I didn’t want any more shocks, and I relied on her to help me get ready for whatever might happen. They were so supportive. Having to go through all this on my own, living in the house that my husband died in and sleeping in the bed… Most people don’t have a clue what it’s like.”
In court, Jefferies’ barrister argued that she wanted to go public in order to “minimise the harm to other people in this situation”. But helping others was far from her mind: she just wanted to win her case. “And it was a lot more powerful to make everything public, so that the HFEA and the clinic were accountable. It was so ridiculous. How much do I have to prove to everybody that, actually, I want children?”
But that was never in question, I say; in the end, the judgment came down to a box that wasn’t ticked properly.
“It’s a bit much,” she replies. “I couldn’t understand why it was going to the high court. Why can’t people just have a conversation beforehand, using common sense?”
But for Jefferies’ solicitor, the case was never simple. “The hearing might have made it look more straightforward than it was,” Lawford Davies tells me. “The matter was originally listed for two full days.” He has built a career advising fertility clinics and research laboratories. Posthumous conception is a niche within a niche, and he relishes the intellectual challenges the flourishing field of fertility law can provide. “One of the reasons I enjoy my work is that I rarely get asked to advise on the same thing twice.”
He recognises that the law can seem Kafkaesque. “I do struggle with the fact that the time of day a box is ticked on one page of 80 pages of consent forms determines whether or not someone is the legal parent of a child. Consent should be as much about the clearly expressed will and intention of a patient. But there are good reasons it is so tightly regulated, and good reasons we have the forms in the first place. I just think they need to be dealt with sensitively and proportionally.”
Warren’s court victory came two years ago, but she is still living with the trauma of fighting it. She has suffered persistent anxiety, and hasn’t slept properly since the day she was told her husband’s sperm was going to be left to perish. “When I lost Warren, it was a peaceful time,” she says. “All I thought of every day was, you’ve just got to get through today, that’s it, just keep alive, one foot in front of the other. But then I had to fight again. You can understand death – it’s something that happens – but now my whole future was in someone else’s hands. There’s only so much the brain can take.”
Warren and her husband had been inseparable ever since he gave her her first skiing lesson in 2004, when she was 18 and he 24. “Neither of us had been in a proper relationship before. We got together and that was it: we spoke as if we were going to be together the rest of our lives. We were like a little team, the two of us. I felt like we could beat a brain tumour – we could do anything.”
For most of their eight-year relationship, her husband had been fighting cancer. They had planned to have children when Warren was 30, so before radiotherapy, he banked his sperm. Over the next seven years, he signed several forms allowing her to use it if he died, and for him to be named as the father of any children born posthumously. But a month to the day after his death – and three months after Beth’s brother was killed in a car accident – she was told his sperm could no longer continue to be stored: the HFEA required a medical professional to confirm that her husband remained infertile, and his death wasn’t considered acceptable proof. Plus, the forms he had signed only covered the period for which the NHS had agreed to fund the storage, and that funding had expired. Beth had six weeks to become pregnant. She was 26, and overcome with grief; it wasn’t the time for her to try for a baby.
Her court victory wasn’t easy: she was told she was likely to lose, and the HFEA lodged an appeal as soon as she won, which it quickly dropped. Her case led to a change in HFEA rules, meaning that storage times for eggs, sperm and embryos should no longer be linked to NHS funding – a fact that became critical to Jefferies’ legal battle.
“I felt our cases had so many similarities, and that if I had won against the odds, surely that would help her,” Warren says. “If you feel like you’re helping someone else, that helps you, too. It was a bit like being a big sister: I could understand quite a lot of what she was going through, and I could be there for her.”
Lawford Davies put the two women in touch in the hope that Warren could prepare Jefferies for some of the public hostility she’d experienced during her own case.
“The online trolls? Oh my goodness,” Warren exclaims. “They said everything horrible that you could possibly think of.” Some accused her of torturing her husband’s family, even though they had supported her every step of the way, giving evidence and standing beside her in court. Others told her Lawford Davies was taking advantage for personal profit; he worked on her case pro bono.
Despite this, Warren has no regrets about going public: she thinks it was central to her success. Blood, whom Warren describes as “a pioneer”, waived her anonymity in 1996, only after losing her original bid to have her husband’s children. Her appeal became front page news and her fortunes changed.
Now 31, Warren has no plans to have children yet. But it is comforting to know that the option of having her husband’s children is there. “I would always love to do it. I loved him so much, and that ability to bring back part of that person – it’s an amazing thing. But I understand it’s not just about what I want: it would be about my children and my partner and everyone else in the situation.
“Warren wouldn’t ever want me to wear black and cry for the rest of my life. I’ve got to rebuild a new one now. Having that choice has helped me move forward. It will take a lot longer for the sleep to catch up, but I’m so much happier.”
When Warren went to court, she had a special visitor of her own watching from the public gallery: Diane Blood. Warren had Googled her, found her number and rung her for advice. They spoke over many months in the run-up to her hearing.
“I cried at her judgment,” Blood tells me. “I never cried at mine, which was very strange. Hers was so positive. Nobody ever said anything about human rights in my case – it was all about European trade laws – whereas Beth’s was all about human rights. It was everything that I wished had been there 20 years earlier.”
Blood is speaking on the phone from her home in Worksop, in a rare moment between ferrying around her sons Joel, 18, and Liam, 14. She conceived the boys in a Belgian fertility clinic using her husband Stephen’s sperm several years after his sudden death from meningitis.
Although the Bloods had discussed posthumous conception, Stephen had not given written consent for his sperm to be stored. Blood had asked doctors to extract it shortly before his death, while he was in a coma. She won the right to take his sperm abroad to conceive, on the understanding that her case did not set a legal precedent: it would not allow other women to conceive their late partner’s children without their written permission. As a consequence of her victory, sperm, eggs and embryos can now be stored only with written consent; her case laid the way for the mountain of paperwork and check boxes that formed the basis for Jefferies’ and Warren’s cases.
“I don’t think I am a pioneer,” Blood tells me. “Although I was the first person in England to be the subject of a big court case, there were others abroad – and there were posthumous births in England before me. I was just the first to hit the headlines.”
She tells me about Milo Casali, whose New Zealander mother, Kim, created the Love Is… cartoons. He was conceived a few months after his father’s death in 1976, before there was legislation on assisted conception. “She didn’t have to go to court, and there wasn’t any issue with consent, because that didn’t apply then.”
Blood didn’t know about Casali when she took on the HFEA. “It’s different now because of the internet. Going through the process of bereavement, all I wanted to know was that somebody else had survived this, how long it took, and that you eventually come out the other side. I couldn’t find information in the same way as Beth or Samantha could now. It was a massively lonely experience.”
She gets comfort from being able to help others fighting the same battle. At a time when many women with an online presence live in fear of abuse, Blood publishes her mobile number and email address on her website. “People don’t generally abuse it. Those who have contacted me have all been really genuine and in need of a bit of help. I’ve met lovely people.”
Blood has been single since Stephen died in 1994. Does she think having his children has stopped her from meeting someone else? “Even when I was going through the court case, I never said, ‘I don’t think I’ll ever meet anybody again.’ But I just haven’t,” she says. “I do think the situation of a widow is slightly different from that of somebody who gets divorced, where there’s always another person there.” Part of that other person now lives on in her children.
How much are these cases about refusing to let a dead partner go? Did these women go to court at the height of their grief in order to keep their husbands alive?
“No,” Blood answers immediately. “I was fighting to get the rest of my life back. It wasn’t about him, although I knew that’s what he wanted. There were two bereavements: one for him and one for my life. I couldn’t do anything about losing him, but it altered the bereavement for my own life.”
Jefferies sees it differently. “Why not keep Clive alive? What’s wrong with that? They will look like Clive, they will behave like Clive, they’ll be like him – they can’t not be. I’m prepared to accept that criticism. I don’t want to let him go, but then again, I’m in the unique situation where I don’t have to. I’m privileged in that I can keep some of him alive – that’s how I’d reframe it.
“Is that unhealthy? Time will tell, won’t it?” She smiles: “I think our children are going to feel very special.”
- This article was edited on 22 March 2017. An earlier version stated that Beth Warren had PTSD; she has not had a formal diagnosis, but has experienced anxiety and sleep problems since her court victory.
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