A grieving widow is facing a High Court battle to use her dead husband’s frozen sperm to have his baby because of a paperwork blunder made 11 years ago.
Jade Payne, 35, must prove to her fertility clinic that her 35-year-old spouse Daniel, who died two years ago, wanted her to have his child through IVF.
She said TFP Oxford Fertility told her that she will have to win a High Court battle before they can unlock Daniel’s sperm, which was frozen ahead of his testicular cancer treatment in 2010.
The couple, who were together for 10 years, were planning to start IVF and have a child before a brain tumour Daniel had been living with returned with more severity and killed him in December 2019.
The dispute is centred around a ‘technicality’ that Jade’s name is not on Daniel’s original sperm donation documents – despite more recent ones having her signature on them.
Jade, who is a nanny, told MailOnline: ‘I have to prove my husband wanted my child, and there’s no guarantee after doing all of this that I’m going to win.
‘I may get told I can’t use his sperm as I don’t have sufficient evidence of his wishes, but on top of that I may have to fund my own IVF as well.
‘My dog recently had an accident which cost me an arm and a leg in MRI scans, and I expect legal costs for this will run into tens of thousands. Then trying to find a solicitor who actually deals with my unique case is really difficult.’
Jade Payne, 35, has to prove to her fertility clinic that her deceased partner Daniel (both seen on their wedding day in June 2018), 35, really wanted her to have his child through IVF
She added: ‘He first froze his sperm in 2010 because he had testicular cancer for a second time. In 2014 we got a referral to start IVF but then life got in the way and towards the end of 2018 we decided that we would start the referral process again.
‘When Daniel had his operation in 2016 his brain tumour actually changed grade and, with a fast-growing tumour, we didn’t know how long he would actually have and whether it would be enough time.
‘We wanted to start a referral process and family so he would be able to have however long with his child but ultimately that never happened.
‘I got a phone call in October 2019 asking if we were ready to start IVF. I explained that Daniel’s tumour had changed grade and he was terminal so I wasn’t emotionally stable enough to start the process.
‘They said when the time is right I could make contact with them because our funding lasted for 60 months.’
Jade now has to collect letters from family, friends, a GP and some of Daniel’s carers to prove his wish for her to have his children.
She earlier said: ‘I think it’s disgusting that I have to prove anything to the court. He was my husband and I want his child.
‘It’s something we both wanted – we were planning it together and then he died before we got the chance.’
Jade, from Brackley, Northamptonshire, said that she and Daniel had already chosen baby names and decided how to design their nursery.
She said: ‘Having his child would mean the world to Daniel. It’s something we were always going to do.
‘Throughout our relationship he told me “your name is on my sperm so you can use it when you want and it’s yours”.
‘We’d chosen baby names, talked about how we wanted the nursery to look, what pram we’d buy, we knew exactly what we wanted.’
Daniel (left and right) passed away just three months after finding out that the brain tumour he had been living with since 2006 – a grade 2 astrocytoma – had grown
Daniel, a fabricator, was ‘certain’ that he had included Jade’s name on the initial sperm donation document but it emerged after his death that he was mistaken.
The couple had signed documents to start NHS-funded IVF at John Radcliffe Hospital in Oxford in July 2019 and faced no issues with the missing signature.
But when Jade asked about using her husband’s sperm after his death she was told there wasn’t sufficient evidence showing that she was entitled to the sperm.
Jade said: ‘I do understand the legality of not having my name on the original document; it’s something Daniel thought he had taken care of but, even so, he and I have both signed documents since then and he was my husband so you’d think common sense would prevail.’
She added: ‘To have a “mini Daniel” running around would mean the world to me.
‘It’s just a shame I’m going to have to fight for it, especially considering how hard I fought alongside Daniel in his last three months of life.
The couple, who were together for 10 years, were planning to start IVF and have a child before a brain tumour Daniel had been living with returned in full force in September 2019 and killed him three months later
‘If the judge was to say no, it would be heart-breaking. I don’t know what I’d do, probably curl up into a ball, because, in effect, it would be like losing Daniel all over again.’
Daniel passed away just three months after finding out that the brain tumour he had been living with since 2006 – a grade 2 astrocytoma – had grown.
His condition quickly deteriorated and he died two days before Christmas in 2019.
Jade’s fundraising effort for her High Court battle is being supported by Brain Tumour Research.
She said the charity has been ‘100 per cent’, adding: ‘They are amazing at what they do.’
Hugh Adams, head of stakeholder relations for the charity, said: ‘At a time when Jade and Daniel should be planning their family together as husband and wife, Daniel has been taken away by this devastating disease leaving Jade to face the future alone.
‘We will be thinking of Jade as we approach Christmas and the anniversary of Daniel’s death.’
MailOnline has reached out to TFP Oxford Fertility for comment.