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Case study: James Lawford Davies, partner at Hempsons

25 August 2015

James Lawford Davies demonstrated his commitment to access to justice when he acted pro bono in a two-year legal battle which fought to grant the wishes of a deceased man to give his 26 year-old widow the time to rebuild her life before choosing whether to conceive posthumously. The resulting High Court judgment changed Beth Warren's life and set a national legal precedent.

James Lawford Davies, outside Royal Courts of Justice

The case

Warren Brewer, 32, had his sperm frozen before having radiotherapy treatment for cancer and signed forms saying his wife could use it if he died. One month after his death in February 2012, his wife, Beth Warren, was informed by the Human Fertilisation and Embryology Authority (HFEA) that she had only six weeks to conceive her late husband's child otherwise they would be destroyed.

Legislation and codes of conduct by the HFEA, including the HFEA Act of 1990, asserted that Mr Brewer's sperm must be used by 19 April 2012, ten weeks after his death due to the paperwork which had been issued by CARE Northampton to Mr Brewer.

At the time Mrs Warren, who uses her late husband's first name as her surname, said she was not yet ready to have his child as she was still grieving.

Mrs Warren instructed James Lawford Davies to represent her, and James established a legal team consisting of himself, a QC barrister and two junior barristers, while seeking support from several IVF specialists.

The case turned on the fact that sperm and eggs may be stored for up to 55 years if the husband's consent is renewed every 10 years. However, after his death, the regulator, the Human Fertilisation and Embryology Authority, said the existing consent only had until April 2015 to run. The dead man was unable to apply for a renewed consent and so the sperm had to be destroyed.

In 2014, the High Court found that the husband had not been told of the time restrictions and so had not known it was necessary 'to obtain the requisite long-term consent. Ruling in Warren's favour, the judge said the clinic had failed to give the couple the relevant information, and the fact he had not provided the requisite medical certificate was 'through no fault of his own'. His sperm may now be stored for a period of 55 years, up until April 2060.

Ongoing pressure on the HFEA has since resulted in announcement of significant legislative and paperwork changes to safeguard others from this situation on 3 February 2015.

Coverage of the case has led to an outpouring of messages to Mrs Warren from people who have been touched and inspired by her fight.

The solicitor

James took on this case after taking a personal interest in Mrs Warre's situation with full knowledge that she would not be able to fund such a large legal challenge against a national organisation.

James supported Mrs Warren both legally and emotionally throughout what was a lonely battle, which constantly reinforced the changes in her future now that her husband had died. Without James' pro bono work, it would have been impossible for Mrs Warren to have secured the choice that her late husband had left her. If James had not taken on this case pro bono Mrs Warren would have become pregnant at a time when she was emotionally, financially and professionally not ready, or have lost this choice and have needed to face this loss for the rest of her life.

Speaking about the case, James said:

'Counsel and I agreed to take on the case pro bono because we felt Beth should be allowed more time to decide whether and when to have a child rather than being forced to rush into making a decision so soon after the death of her husband and brother [who died in a car crash in December 2011]. We were delighted with the outcome, allowing Beth to get on with her life.'

Hogg J said:

'I am most grateful to Mrs Warren's leading counsel, junior and solicitors who I understand acted pro bono on her behalf.'