A couple who hope to create a baby whose umbilical cord blood could save their four-year-old son's life were "ecstatic" last night after three appeal court judges gave the go-ahead for them to launch their attempt immediately.
In December 2001 Raj and Shahana Hashmi were the first couple in Britain given approval by the human fertilisation and embryology authority (HFEA) to try to create a sibling who would be a tissue match for a sick brother or sister.
But 12 months later, after two failed attempts, they were forced to put any further treatments on ice, when a high court judge ruled that the HFEA had been acting outside its powers in allowing the technique, embryo selection by tissue-typing.
The case was brought to court by Josephine Quintavalle of the "pro-life" group Comment on Reproductive Ethics, which believes babies should be conceived only for their own benefit and not to help a sibling. The technique involves using IVF to create a number of embryos and then implanting only those which are an exact match for the sick child.
Yesterday, Lord Phillips, Lord Justice Schiemann and Lord Justice Mance overturned high court judge Mr Justice Maurice Kay's ruling that the HFEA's powers were limited to helping women with fertility problems bear children.
The judges said they would give their reasons after Easter, but their ruling means the Hashmis can go ahead with treatment. Time is running out for Zain, who has beta thalassaemia, a rare blood disorder for which he needs frequent blood transfusions.
At their home in the Leeds suburb of Moortown, the couple made their delight plain. Mrs Hashmi, 39, said: "We're absolutely thrilled. We've done everything a parent could possibly do to try to save Zain's life. Now we all have new hope."
Her husband, Raj, a legal consultant, was still breathless after leaving work in York early when he heard the news. He said: "I got home and got a big kiss and hug from Sha hana, but the main thing was Zain running towards me and jumping up and giving me a massive hug and saying: 'Dad, dad, well done! You've done it. I can get better now'."
Mrs Hashmi added: "This also promises to help other people. We hope so. It opens the door to other families in the same position as us. Whether or not we succeed with a new baby, the judges have given us all hope, especially Zain."
Mr Hashmi said: "It has been such a struggle but we need to be strong because it's going to be hard watching Zain go through a transplant, if all goes well. We hope and pray we will get there, science and God willing."
Dr Simon Fishel, director of the Centre for Assisted Reproduction at Park hospital, Nottingham, who is treating the Hashmis, said he was "delighted" not only for them but for other families who had been awaiting the judgment. He said he was advising six couples whose children had disorders that might benefit from the technique.
He put the Hashmis' chances of finding the right embryo at only about one in 12 and the chances that the embryo would then result in a live child at about one in 10. As Zain got bigger, there was less chance that the few stem cells from the umbilical cord blood would produce a result, and it might then be a question of applying to the court for permission to do a bone marrow transplant with the new sibling as a donor.
The family has so far failed to find a bone marrow donor with matching tissue.
Suzi Leather, who chairs the HFEA, welcomed the judgment, adding: "Clearly clinicians cannot always prevent diseases but if they are able to and also save the life of a sibling, then this is a legitimate use of these new techniques."
