An attempt by NHS Scotland to prevent men having the same rights in respect of their stored sperm samples as their counterparts in England has failed following a landmark judgement in The Court of Sessions.
The case arose after a failure at the storage facility in the Western General Hospital in July 2001, allegedly due to negligence on the part of the NHS. The facility stored sperm samples from men undergoing chemotherapy treatment who wanted to preserve their ability to father children, should the treatment render them infertile.
The storage facility failure caused the samples to be damaged and the men concerned were not informed of the failure until December of that year.
The judgement follows a two week hearing in May, heard by Lord Stewart. Unusually, NHS Scotland were not prepared to accept an English Court of Appeal decision, despite of a claim for distress, psychiatric injury and loss arising from negligent failure being approved by the Court of Appeal iny the case of Yearworth and Others V North Bristol NHS Trust in 2009.
Although there are similarities between the jurisdictions, the principles of Scottish Law applicable to the situation gave rise to fresh arguments and whatever the outcome, the case is destined to create new law in Scotland.
Chris Thorne, Partner at Clarke Willmott LLP acting for the group, using Scottish agents Balfour and Manson said: “We welcome Lord Stewart’s findings. Any decision to prevent these cases proceeding would have led to an unacceptable anomaly whereby men receiving treatment in England had legal rights and remedies denied to men in exactly the same situation in Scotland. Such an anomaly would be neither fair nor reasonable. The question of whether an individual can participate in having a family is one of such fundamental significance to all of us.”