06 November 2020
Legal and ethical dilemmas over posthumous conception will always exist
Societal and cultural attitudes towards sexuality, conception and family creation have evolved dramatically in recent years.
Just 50 years ago, abortion was a criminal act, as were all private and public acts of homosexuality; it was only 30 years ago that the fundamental human rights in respect of family life and anti-discrimination, were adopted into domestic legislation and, over time, permitted a wider recognition of the right to have a family regardless of an individual’s sexual orientation or marital status.
As medical reproductive techniques have developed to enable state of the art fertility treatments and family building, the law will always be forced to play catch up, not least since its role is usually to react to new concepts rather than to create them. Although regularly asked to do so, judges have been pulled somewhat unwillingly into examining the complex scientific, philosophical, ethical and legal dilemmas that modern family law presents.
So the courts find themselves faced with making difficult judgments, for example, from the right of a transgender man who gives birth to be named ‘father’ on the child’s birth certificate, the legal storage limits for eggs, sperm and embryos, through to the use of an individual’s reproductive and genetic material when they can no longer consent for themselves.
Couples pursuing IVF and other fertility procedures involving providing sperm, eggs and embryos must always ensure that the proper paperwork concerning their consent is correctly completed and kept up to date in line with their wishes. Clerical errors can lead to cases such as that of Clive Jefferies and his wife’s desire to use their three frozen embryos following his unexpected death.
The length of storage had been incorrectly marked as two years by the clinic in line with payment arrangements, rather than 10 years, which would have permitted the clinic to destroy the embryos and dashed any hope of Mrs Jefferies having a posthumously conceived child with her husband’s sperm. However, The President of the Family Division, Munby P, took into account the husband’s explicit consent to the posthumous use of the embryos by his wife and permitted the posthumous use of their stored embryos in future fertility treatment.
Individuals facing the premature death or incapacity of a former partner or spouse are increasingly turning to the law to circumnavigate or reinterpret the rules around consent within the context of fertility treatment in the desperate hope of creating a longed for baby.
However, this is not a new concept. In 1997, Diane Blood took on HFEA (the Human Fertilisation and Embryology Authority) to use the sperm of her dead husband even though he had not officially consented to this. After two years of emotionally fraught litigation, the courts allowed her to use her dead husband’s sperm for use in fertility treatment in Europe as there were no restrictions on exporting sperm.
Beth Warren successfully mounted a legal challenge in 2014 against the clinic looking to destroy her husband’s sperm since the written consents provided by him did not specify that his gametes should be stored beyond the statutory period. This left his widow without a realistic chance of conceiving a child. However, Mrs Justice Hogg found in favour of his widow – placing less emphasis on specific written consent required by law, and placing more weight on Mr Warren’s wishes to have a child when he was alive.
Y v A Healthcare NHS Trust 2018 was a unique and important ruling on posthumous conception. The husband and wife, who already had one child and were undergoing fertility treatment for a second, when he suffered a traumatic brain injury in a road traffic accident. As a result, he lacked capacity to provide his written consent for fertility treatment for the purposes of the HFEA Act, being required for the storage and use (but not the retrieval) of his gametes.
Here, the Court of Protection, under Mrs. Justice Knowles, intervened, declaring the extraction, storage and posthumous use of his sperm to be lawful. The judge exercised the court’s powers under s.16(2)(a) of the Mental Capacity Act 2005 to order that a named person (being a relative of the man) could sign the consent for the storage and posthumous use of his sperm on his behalf thereby overriding the requirement for his written consent. The court recognized the husband’s desire to have more than one child and also significantly recognized that an individual’s fertility and reproductive legacy is precious and should be protected.
What we have also seen, albeit rarely, is that the desire to have a posthumously conceived child is so strong, it can lead to the decision to ‘do it anyway’, regardless of such action being, in some cases, illegal.
It has recently transpired that somewhere within the UK, a young man was killed in a traffic accident leaving his body undiscovered at the side of the road for several days. His wealthy parents, who had just lost their only son and desperately wanted an heir, took the decision to engage a urologist to extract sperm from their dead son, which was then couriered to the US. A Californian fertility clinic then created four embryos using donor eggs and a child was born via surrogacy in 2015.
This was clearly in breach of domestic law, but illustrates the overwhelming desire to create a child, even after death.
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