A former cancer patient who claims he lost the chance to father his own child after a failure in a freezer storing sperm samples has won a legal battle to have his damages claim go to a full hearing.
Richard Holdich raised an action seeking pounds £50,000 compensation from Lothian Health Board following the malfunction in a sperm bank at the Western General Hospital in Edinburgh.
A judge heard that 20 other cases are “waiting in the wings” following the problem with the specialist cryogenic storage freezer.
Nine years after his sperm samples went into storage Mr Holdich was told in 2001 that a failure had occurred in the freezer, which affected its liquid nitrogen supply.
The health board had earlier sought to have the case brought by Mr Holdich, 44, thrown out at a legal debate before Lord Stewart at the Court of Session in Edinburgh.
But the judge said today (thurs) that he would allow the action to go to a hearing of evidence.
The court heard that Mr Holdich underwent chemotherapy treatment for testicular cancer which made him infertile,, but prior to that he had deposited sperm samples at the facility in 1992 when he was aged 22.
Lord Stewart said: “He deposited his sperm to preserve his chances of becoming a father.”
Mr Holdich, of Main Street, Cherry Burton, Beverley, in Yorkshire, later married and made a request to retrieve the stored sperm so that they could try and have children by in vitro fertilisation.
But he then learnt of the malfunction which led the temperature of the storage vessel containing his sperm rising by more than 100 degrees. He was initially advised that the samples could have been damaged and should not be used.
Lord Stewart said: “The apprehended damage reduces the chances of conception and increases the risk of chromosomal abnormalities, miscarriage and birth defects.”
“After a period of discussion, during which conflicting advice was offered, the pursuer decided not to proceed with IVF using his sperm samples,” said the judge.
Mr Holdich maintains in his action that his decision was a reasonable one.
He is claiming compensation from the health board for distress, depression and loss of the chance of fatherhood on the basis that the damage to his samples was through the board’s negligence.
But during a procedural hearing before the judge the health authority maintained that Mr Holdich’s pleadings failed to disclose a cause of action relevant in law or which could be relevant for winning damages and sought dismissal of the case.
Lord Stewart said he would reserve the question over the board’s plea and allow the case to go to a hearing before determining questions of law.
The judge said: “I take the view that the claim in delict for ‘pure’ mental injury caused by negligent out-of-body damage to sperm is apt for proof and certainly cannot be rejected out of hand.”
Lord Stewart said a further aspect of the action over an alleged contract should also go ahead.
The judge said: “A separate reason for allowing proof on all matters is that the case raises questions of novelty and importance in a developing area of the law which demand to be answered after all the facts are known.”
“I am well aware that lots of books, book chapters and journal articles have been written about the issues touched on in this opinion,” he said.
in the action it is said that Mr Holdich was distressed at the damage to the sperm samples that he intended to use for IVF and suffered psychiatric harm. It is said: “He avoids material portraying children and families.”
The health board, which is contesting the action, maintained that the only consequence of the failure was “a small theoretical increased risk of some genetic abnormality occurring” if a sample was used for conception and said it was his choice not to use them.