First published by Family Law Journal (Legalease) in May 2022.
Natalie Sutherland is a partner at Burgess Mee and a trustee of Progress Educational Trust
Natalie Sutherland looks at posthumous conception and issues of consent and legal parenthood
It is tragic when a parent dies before a child is born. But what about children purposefully conceived after a parent’s death? With advances in assisted reproductive technology and cryopreservation, and a legal framework, babies can be – and are – conceived posthumously.
Conceiving children posthumously is not illegal, but the law is very clear that there must be consent, as set out in Sch 3, Human Fertilisation and Embryology Act 1990 (HFEA 1990), as amended by the Human Fertilisation and Embryology Act 2008 (HFEA 2008).
Consent must be in writing and signed by the person giving consent and, to be ‘effective consent’, it must not have been withdrawn (Sch 3, HFEA 1990, para 1). Sch 3, HFEA 1990, para 3(1) provides that before a person gives consent, they must:
- be given a suitable opportunity to receive counselling; and
- be provided with such relevant information as is proper and be informed of the effect of any withdrawal or variation of consent.
Sch 3, HFEA 1990, para 2(2) provides that consent is required for the storage of gametes and embryos and must:
- specify the maximum period of storage; and
- state what is to be done with the gametes or embryo if the person who gave consent dies or is unable to vary or withdraw consent due to lack of capacity.
Consent is also required for the creation of an embryo in vitro and for the use of any embryo in treatment services, either for the person giving consent, for themself and another, or for another person.
The terms of any consent may be varied, and consent may be withdrawn by giving written notice up to the point the embryo is used (Sch 3, HFEA 1990, para 4(1) and (2)). Where consent to the use of a stored embryo is withdrawn before its use in treatment services, all interested persons are to be notified of the withdrawal. Thereafter, storage remains lawful for 12 months, allowing a ‘cooling off’ period. After the 12-month period, any further storage is illegal (Sch 3, HFEA 1990, para 4A(4)).
It is clear, therefore, that consent is the ‘bright line’ of UK fertility law.
We do not, of course, know when death is going to strike and therefore many of the cases dealing with posthumous conception find loved ones seeking access to the deceased’s gametes where it may not be clear to the court whether creating posthumous children is what the deceased would have wanted.
R v Human Fertilisation and Embryology Authority ex parte Blood 
The deceased died after contracting meningitis. While he was in a coma, his wife asked the doctors to take a sample of his sperm by electro-ejaculation and thereafter the sperm was stored. The wife wanted to use the sperm to create a child using IVF, however because the sperm was retrieved and stored without the deceased’s consent, the Human Fertilisation and Embryology Authority (the HFEA) would not permit the wife to use it for treatment services. She therefore stated that she would go abroad for treatment.
Under s24(4), HFEA 1990, the HFEA has discretion to issue directions that would authorise a licensed clinic to send gametes outside the UK in such circumstances and subject to certain conditions, including relating to licenses and consent. The HFEA, however, did not give that specific direction and the wife applied for judicial review. At first instance her application was dismissed but she was given leave to appeal to the Court of Appeal.
Lord Woolf MR, who gave the lead judgment, clarified that the sperm should not have been stored and that ‘technically’ an offence had been committed by the licence holder because not having consent breached the licence conditions. However, as this was a landmark case without precedent, he said there was no question of any prosecution being brought as it was ‘...an unexplored legal situation where humanity dictated that the sperm was taken and preserved first, and the legal argument followed’, but that going forward, ‘...the position will be different as these proceedings will clarify the legal position’ (p178).
Not only was the storage of the sperm prohibited without consent, but its use for treatment was also prohibited through lack of consent and the HFEA would have no discretion to authorise the treatment in the UK.
The wife was, however, ultimately successful in having the sperm exported to a clinic in Belgium. She relied on Arts 59 and 60 of EC Treaty (OJ 1992 No C224) that as a citizen of the EU she had a right that was directly enforceable by her to receive medical treatment in another Member State. Whilst the HFEA had argued that her rights to receive treatment were not infringed because she could travel and receive any treatment but, rather, it was just the export of the sperm that was not permitted, the court considered that this argument failed to reflect the reality of the situation and that the HFEA’s refusal to allow export of the sperm prevented the wife from having the only treatment she wanted.
When reviewing the HFEA’s decision to prohibit export, it was found that the HFEA had not considered the effect of Art 59, nor the fact that, after this judgment, there should be no further cases where sperm is preserved without consent. Although it was understood that the HFEA would not want to create a precedent that could encourage others to flout the requirements of the Act, given that storage could not lawfully take place without written consent, there would be no fresh cases.
The appeal was allowed, the wife received treatment in Belgium and two children were born from her husband’s sperm.
Y v A Healthcare NHS Trust and others 
This case involved the Court of Protection. The applicant’s husband was involved in a motorcycle accident. He was left with a catastrophic brain injury from which he was unlikely to recover. The case came before Knowles J sitting as the emergency applications judge.
The applicant sought the following relief:
- a declaration that, notwithstanding her husband’s incapacity and his inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death; and
- an order pursuant to s16, Mental Capacity Act 2005 (MCA 2005) directing that a suitable person should sign the relevant consent form for the storage of her husband’s sperm on his behalf.
Because at the time of the application the applicant’s husband was alive but unconscious, MCA 2005 applied in this case. Section 15, MCA 2005 gives the Court of Protection the power to make declarations as to whether a person has or lacks capacity to make decisions. If a person lacks capacity, under s16(1), MCA 2005 the court can make orders on the person’s behalf or appoint a deputy to make those decisions. Under s1(d), MCA 2005, a decision made under MCA 2005 for or on behalf of a person who lacks capacity must be done or made in their best interests.
Schedule 3, HFEA 1990, para 1(1) states that consent must be in writing and signed by the person giving it and para 1(2) states that:
A consent under [Sch 3, HFEA 1990] by a person who is unable to sign because of illness, injury or physical disability (a ‘person unable to sign’), and any notice under [Sch 3, HFEA 1990, para 4] by a person unable to sign varying or withdrawing a consent under [Sch 3, HFEA 1990], is to be taken to comply with the requirement of [Sch 3, HFEA 1990, para 1(1)] as to signature if it is signed at the direction of the person unable to sign, in the presence of the person unable to sign and in the presence of at least one witness who attests the signature.
As the applicant’s husband was still alive, it was possible to utilise these provisions before he was declared brain dead.
The judge had no issue with declaring that the applicant’s husband lacked capacity to consent to the fertility treatment and that the court’s powers under the MCA 2005 were fully engaged. As such, it was possible for the court to consider the applicant’s husband’s best interests. Knowles J was satisfied that the applicant and her husband had a settled intention to have a sibling for their son, that they had sought a referral for fertility treatment, that they were under the care of physicians and had an appointment to progress the treatment, that they had discussed the posthumous use of his sperm and had agreed to posthumous use.
Interestingly, the application did not include a request for a declaration that the sperm could be used to form embryos and in treatment services after death. Knowles J commented that had she only made the declaration for storage prior to his death, then the applicant would have faced further legal proceedings after her husband’s death to be able to use the sperm, as the provisions of Sch 3, HFEA 1990, para 1(2) would not have been applicable after his death.
She declared that the applicant’s husband lacked the capacity to provide his written consent for fertility treatment, such written consent being required for the storage and use of his gametes. Notwithstanding that he lacked capacity, it was declared lawful for a doctor to retrieve his gametes to be stored both before and after his death and for his gametes to be used after his death. The order provided for a relative to sign the relevant consents in accordance with Sch 3, HFEA 1990, para 1(2).
This case was very fact specific. Had the applicant’s husband not been in a coma, enabling her to make this urgent application under MCA 2005 and for the court to have the discretion to make decisions on the husband’s behalf considering his best interests and for the consents to be signed on his behalf while still alive, the applicant would probably have faced a much harder battle for permission to use any retrieved gametes posthumously given the lack of written consent.
SB v The University of Aberdeen 
This Scottish case is significant in relation to whether consent can be provided in a validly executed will.
The deceased had stored his sperm years before to preserve his fertility when he was single and had been diagnosed with a serious illness. His wife, the petitioner, wanted to use the sperm after his death but the day before he died it was discovered that the forms he had completed only consented to the use of his sperm in IUI and not IVF, which involves the creation and storage of embryos.
The deceased’s will contained a clause relating to the storage and use of his sperm and the court had to decide whether in the absence of the customary consent forms, the will, either alone or in combination with the forms he had signed, constituted consent for the use of his sperm in IVF treatment.
The will contained the following provision, under the heading ‘Human Fertilisation and Embryology’:
I direct my executors to ensure that my donation of sperm will be, for as long as possible, and for as long as she may wish, available to [the wife].
The court concluded that the requirements for effective consent to the use of gametes for IVF treatment are that it must:
- be in writing;
- be signed by the deceased;
- specify the purpose of use and be clear that it encompasses consent to the creation of embryos in vitro;
- be given following counselling and the provision of relevant information; and
- not have been withdrawn.
It was held that the clause in the will constituted sufficient consent to meet requirements as to the consent being in writing, signed by the deceased and not withdrawn. In relation to counselling, it was accepted that the deceased had been provided with counselling when he had deposited the sperm.
In relation to the requirement for the consent to specify the purpose of use and be clear that it encompasses consent to the creation of embryos in vitro, the HFEA (the third respondent to the proceedings) accepted that IVF treatment appeared to have been in the deceased’s contemplation. The court therefore concluded that there had been a discussion, albeit limited, about IVF which in the circumstances was sufficient to meet the statutory requirements. Further, the heading in the will had used the word ‘embryology’ and that the clause itself was expressed unconditionally and in the widest terms, specifying that the sperm be ‘available’ to the wife for her unqualified use, thus covering the prospect of her treatment.
Regarding the construction of the clause in the will, the court considered the plain meaning of the words in context. It was a testamentary document which expressed the deceased’s wish for the future use of his stored gametes and, although a direction to his executors, it articulated his wishes. The court was concerned not with whether the clause could be given testamentary effect but whether it could be construed as granting the necessary consent and concluded that ‘there was no doubt that it can’.
The above cases focus on issues surrounding the posthumous use of gametes to create children, but what about the legal status of deceased parents whose children are conceived after their death?
The female who provides the egg cannot be recognised as the child’s legal parent after death, because the woman who gives birth to the child is always the legal mother. It is, however, now possible for deceased fathers to be legally recognised in certain circumstance, following the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, which inserted sections 28(5A) - (5I) into HFEA 1990 and provided for certain deceased men to be registered as fathers.
Section 28(5A), HFEA1990 provides that where a woman has had placed in her an embryo created by using a man’s sperm after his death or by using the man’s sperm before his death to create an embryo but placing it in the woman after his death, that man will be the legal father of that child only for the purposes of being named on the birth certificate if the man had consented to the use of his sperm after his death and to be named on the birth certificate, and the woman elects in writing not later than 42 days from birth (21 days in Scotland) for the man to be named on the birth certificate.
If the man is not married to the woman, he must have been receiving treatment services with the woman before his death in a UK licensed clinic or outside the UK. Legal parenthood also applies where donor sperm is used.
Section 46, HFEA 2008 creates parallel provisions to enable a birth mother to name a deceased same-sex partner (whether married to, in a civil partnership with, or receiving licensed treatment services together) on the birth certificate within 42 days of birth, where an embryo has been created using donor sperm and transferred to her after the death of the partner, and that partner consented to the placing of the embryo in the woman after her death and to being named on the birth certificate.
The above provisions relate to circumstances where conception takes place after death of one of the parents and enables them to be named on the birth certificate but not treated as a parent for any other purpose. If a parent dies after their partner is pregnant, they will be named on the birth certificate and treated as a legal parent for all purposes.
The law relating to posthumous conception is complex and an ethical minefield. Consent remains the cornerstone of our law but where death is concerned, which is unpredictable and can be sudden, we are likely to continue to see cases where the courts are required to analyse, interpret and consider the question of consent.
R v Human Fertilisation and Embryology Authority ex parte Blood  Fam 151
Y v A Healthcare NHS Trust & Ors  EWCOP 18
SB v The University of Aberdeen and others  CSIH 62