To read the full article in Family Law Week, click here: https://www.familylawweek.co.uk/articles/posthumous-conception-an-essential-guide/
The articles have been linked below with kind permission.
The legal framework
Section 39 of the Human Fertilisation and Embryology Act 2008 governs the use of a man’s sperm or an embryo created with his sperm after his death. It stipulates that each party must give written, informed consent to ensure that such reproductive materials are used within strict parameters. In the absence of lawful consent, gametes and embryos cannot be stored or used in fertility treatment in the UK and must be discarded.
Complex legal and emotional circumstances may arise in often unexpected situations in this regard – for example, an individual may become incapacitated or die suddenly having previously undergone fertility treatment without having provided the necessary written consents for the collection, storage or use of their eggs or sperm after their death.
Although such circumstances are distressing to contemplate, it is prudent to be aware of posthumous conception, discuss such issues with one’s partner (and wider family), and ensure that wishes are recorded appropriately so that they may be relied upon in securing the storage and use of gametes in the unfortunate event of sudden incapacitation or death.
The law in practice
In recent years, the courts have been invited to consider difficult scenarios in which written consent fell short of the legal requirements. The difficulties partly arose because of deficiencies with fertility clinic forms. For example, in the case of Warren v Care Fertility (Northampton) Ltd & Anor [2014] EWHC 602 (Fam), Mr Warren had frozen his sperm prior to radiotherapy treatment for a brain tumour. He had signed a consent form allowing Mrs Warren to use the frozen sperm in the event of his death. One month after Mr Warren’s death, Mrs Warren was informed that her husband’s sperm could no longer be stored as the forms he had signed only covered the period for which the NHS had agreed to fund the storage and that funding had expired.
Similarly, in Jeffries v (1) BMI Healthcare (2) Human Fertilisation and Embryology Authority [2016] EWHC 2493 (Fam), Mr and Mrs Jeffries had created three embryos during fertility treatment before Mr Jeffries’s sudden death from a brain haemorrhage. Mr Jeffries had agreed to the embryos being stored for the standard ten years allowed by the Human Fertilisation and Embryology Authorisation and had given specific consent for Mrs Jeffries to conceive their children after his death. The form had been accidentally amended during processing at the clinic so that consent was given for the embryos to be stored for two years rather than ten.
In the cases of Ted Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) and EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam), Mr Jennings and EF separately applied for declarations that it was lawful for them to use an embryo created using their sperm and the eggs of their late wives in treatment with a surrogate. In both cases, the embryos had been created during fertility treatment. Mrs Jennings and the wife of EF had both died suddenly and unexpectedly. Mr Jennings and EF’s cases were founded on the same principle – their wives had not been given sufficient information or opportunity by the clinic to give lawful written consent. Forms signed by Mr Jennings and EF made provision for posthumous use of their stored sperm but the forms signed by their late wives did not provide an opportunity for them to consent to the embryo being used in the event of their deaths.
Happily for the applicants, the aforementioned cases were decided in their favour. Mrs Justice Hogg granted a declaration that it was lawful for Mr Warren’s sperm to be stored up until April 2060 so that it could be used by Mrs Warren for the purposes of conceiving a child. She was satisfied that Mr Warren had given consent and, although he had not given written consent as required by law, this was through no fault of his own; Mr Warren would have done what was required if he had known it was necessary.
Mrs Jeffries was similarly granted permission to use the embryos created with her late husband in fertility treatment – the original form signed by Mr Jeffries constituted valid consent for the embryos to be stored for up to ten years.
It was considered that the forms signed by Mrs Jennings and EF’s late wife were far from clear. Neither had been given sufficient opportunity to consent in writing. Their consent could be inferred and both Mr Jennings and EF were granted permission to use the embryos in treatment with a surrogate.
A slightly different scenario arose in the case of Y v A Healthcare NHS Trust, the Human Fertilisation and Embryology Authority, Z (Litigation Friend) [2018] EWCOP 18, 2018 WL 03873380. Y sought a declaration that, notwithstanding her husband (Z)’s incapacity and inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death and that a suitable person could exercise the relevant consents on his behalf. Z and Y had been unable to conceive a second child naturally and were investigating assisted conception. It was Y’s recollection on signing the relevant forms that Z was happy for her to use his sperm for fertility treatment even in the event of his death. Z had suffered a catastrophic brain injury in a motorcycle accident and was likely brain dead. Y wanted to retrieve Z’s sperm before he died in order to continue fertility treatment despite the fact that Z was unable to provide the written consent required.
Mrs Justice Knowles was satisfied that Z and Y had a settled intention to have a second child, were actively undergoing fertility treatment and that Z had discussed with Y the posthumous use of his sperm and agreed to this. The court should exercise its powers to direct the execution of consent for both storage and use of Z’s sperm and that a relative could give consent on his behalf. This decision was considered to be in Z’s best interests.
In these cases “consent” was not considered in a vacuum; the wishes of the deceased could be inferred from their actions whilst alive. The applicants had a right to private and family life under Article 8 of the European Convention on Human Rights 1998. The Court found that to interfere with such rights by not granting the declarations applied for would be a significant interference and such interference would not be proportionate. The judges in each case were required by section 3 of the Human Rights Act to read down section 39 of the Human Fertilisation and Embryology Act 2008 in a way that was compatible with the applicants’ Convention rights.
Irrespective of these outcomes, written consent should be considered extremely carefully. Couples undergoing fertility treatment should interrogate consent forms provided by fertility clinics and ensure that they have considered the unlikely scenario of unexpected death or incapacitation, and recorded their wishes in writing accordingly. The circumstances in which the courts may infer consent after death are limited and highly fact-specific.
The courts have also, in recent years, considered a category of cases in which permission for posthumous conception was refused. In the tragic case of V and W v X (by his litigation friend), King’s College Hospital NHS Foundation Trust [2022] EWCOP 48, 2022 WL 17068781, X, a twenty-two-year-old university student, had suffered from a sudden catastrophic stroke leaving him unconscious with virtually no prospect of recovery. X’s parents sought a declaration that it would be lawful for a doctor to retrieve X’s sperm and for this to be stored after X’s death, and that X’s father could sign the relevant consent. They planned, in due course, to make a further application to use the sperm to conceive a child. X’s father described how X had spoken about his wishes to father a child in the future.
As X was still living but lacked capacity, the court had to consider whether it was satisfied that the declaration would be in X’s best interests in accordance with the provisions of the Mental Capacity Act 2005. Mr Justice Poole noted that it is one thing to have a consistent heartfelt wish to be a living, caring father one day and quite another to wish to have your sperm extracted and stored whilst you are dying with a view to it being used after your death. Unlike in Y v A, an exceptional case, there was no direct evidence that X ever contemplated this issue and there was nothing from which to infer such a view. Although sympathetic to X’s parents, the court could not allow the tragedy or urgency of the case to dictate its decision. Collecting sperm from an unconscious individual was an invasion of privacy and an interference with X’s Article 8 rights which was neither necessary nor proportionate. Accordingly, it was not in X’s best interests to make the declarations sought.
In G v Human Fertilisation and Embryology Authority, the Secretary of State for Health and Social Care [2024] EWHC 2453 (Fam), N was diagnosed with breast cancer. Before commencing chemotherapy, she arranged for twenty of her eggs to be harvested and frozen. After N’s death, her mother sought a declaration that it was lawful for her daughter’s frozen eggs to be stored posthumously, and for the clinic to undertake fertility treatment using N’s eggs, donor sperm and a surrogate to produce children who would be brought up by N’s mother. N had not provided written consent for the posthumous use of her eggs. It was N’s mother’s case that it was N’s last wish for her eggs to be used in this way and that she had been engaged in a joint parenting project with N before her death, and that she had in effect inherited N’s Article 8 rights which had been engaged.
Sir Andrew MacFarlane found no evidence that N had given any thought to posthumous use at the time of harvesting her eggs or later to indicate a settled wish to the posthumous use of her eggs. In comparison to previous cases, N was not engaged in fertility treatment nor had she expressed any wish concerning the use of donor sperm or a surrogate and it was not possible for the court to infer that N had contemplated this scenario. Rights under Article 8 attach to individuals, not to concepts or joint endeavours. N’s Article 8 rights had died with her and her mother had no Article 8 rights in relation to this matter.
However, although the application failed, it was concluded that, if N had given written consent in the relevant form, allowing her mother to use her eggs posthumously in this way, then the law would permit this.
The decisions in these two cases go some way in indicating the line the courts may draw in such cases. There are different considerations when the application relates to an individual without capacity and the court will only be prepared to grant such applications if there is clear evidence that this is something that the individual would have wanted.
Conclusion
To paraphrase Sir James Munby in the case of Jeffries, informed consent is the cornerstone of the legislation. New scientific techniques constantly increase the possibilities for creating new human life in ways never previously imagined. The practical and ethical possibilities that come with such possibilities have to be balanced against human wishes in desperate situations. The legislation is intended to strike a fair balance between these two stalls and the courts must respect that.
There is no doubt that this delicate area of law will continue to throw up difficulties, often of a highly sensitive and urgent nature. Clearly the court is prepared to intervene in particular scenarios. Nevertheless, it is important to be proactive in this regard and prepare for all eventualities, not leaving matters to chance, and future-proof your wishes.
For further information, please contact Sarah Williams, Partner in the Family Department or, alternatively, telephone on 020 7465 4300
To learn more about divorce and separation, you can download a free copy of our Essential Guide to Divorce and Family Law here.
To learn more about Prenups and Postnups, you can download a free copy of our Essential Guide to Prenuptial and Postnuptial Agreements here.
To learn more about Modern Family Law visit our dedicated webpage and download a free copy of our Essential Guide to Modern Family here.
To access our dedicated webpage with free Essential Resources for Supporting and Protecting Vulnerable Clients click here.
