First published on LexisNexis’ family law blog on 24 February 2023 - Posthumous grandchildren? The floodgates remain closed
In Re X (Catastrophic Injury: Collection and Storage of Sperm)  EWCOP 48, Poole J, sitting in the Court of Protection, presided over an urgent out-of-hours application for permission to extract and store the sperm of a 22-year-old man (X), who was in a coma having suffered a stroke while playing sport. The applicants were X’s parents who, while coming to terms with the realisation that their son would be unlikely to recover, sought legal advice about how to continue their son’s legacy and long-held wish to become a father.
The issue they faced was that their son, who had been studying abroad with his whole life ahead of him, had never contemplated whether he would want to become a father after his death. And why would he? His parents, however, were adamant that their son, who had regularly expressed his desire to one day become a father in life, would want to become a father after his death.
As X was alive but incapacitous, the applicants were able to apply under the Mental Capacity Act 2005 (MCA 2005) for an order that the applicant father be authorised to provide X’s consent to the retrieval and storage of his sperm in accordance with para 1(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (HFEA 1990), which permits a consent to be signed on behalf of a person who is unable to sign because of illness, injury or physical disability. Applying under the MCA 2005 meant that the judge had to consider X’s best interests by applying the checklist in MCA 2005, s 4.
The applicants relied on Y v A Healthcare Trust  EWCOP 18. In that case, Knowles J made the declaration that it was lawful for the sperm of Z (who was in a coma) to be retrieved and stored and later used by Y, his partner, to try to conceive a child, as it was held to be in his best interests under MCA 2005. The distinguishing features of that case, however, was that the application was made by the incapacitated person’s partner (rather than parents as in Re X), and there was evidence that they had contemplated having more children together as they had just started consultations in a fertility clinic and had been asked to consider posthumous use. This meant that the judge had more scope to rule that Z would have wanted Y to use his sperm posthumously.
In Re X, the applicants were not able to provide any direct evidence that X would have consented to fathering children after his death, but rather only able to stress his expressed wish to one day become a father. This, however, was insufficient to persuade Poole J that making the orders was in X’s best interests, who said (at para ):
‘It is one thing to have a consistent and heartfelt desire to be a living, caring father. It is quite another thing to wish to have one’s sperm collected and stored when unconscious and dying, with a view to the possibility of the sperm being used for conception after one’s death, and without having expressed any view when living about how the sperm should be used.’
In Re X, the application was made urgently as time was very much of the essence. Had X died before the judge ruled, it would have been too late for the declarations to be made. The application was therefore limited to requesting a declaration in relation to the retrieval and storage of the sperm, since that was the most time-sensitive issue, with the application for a declaration that the applicants be permitted to use their son’s sperm to create grandchildren using a surrogate to be decided at a later date.
Poole J, while acknowledging the urgency, would not allow this or the tragedy of the circumstances to dictate the court’s decision. He said (at para ):
‘If I declared in this case that it was lawful to collect and store X’s sperm without any evidence that that is what he would have chosen for himself, then it would follow that the same declarations might be made in many other cases where parents or other relatives wanted their loved one’s gametes to be collected and stored with a view to decisions about their use being made at a later stage.’
He went on to say:
‘If the Court of Protection were routinely to authorise the collection and storage of gametes in cases where there is no or little evidence that the incapacitous, dying person would have consented, then it would undermine the regulatory provisions within [HFEA 1990] which require actual consent.’
Poole J considered the argument that there would be no harm in allowing the sperm to be collected and stored now and for its use to be considered later but rejected it. Rather, he held that it would be an invasion of X’s privacy for his sperm to be collected while he was unconscious as it is an invasive procedure.
He also considered X’s human rights. X’s right to private and family life under Article 8 of the European Convention on Human Rights (ECHR) was engaged as decisions about whether or not to become a parent is part of a person’s private life. He held that the collection and use of X’s sperm would be an interference with those rights.
Having considered all the circumstances of the case, applying the best interests checklist in MCA 2005, s 4, and considering X’s ECHR, Art 8 rights, Poole J dismissed the application, as he did not consider that it would be in X’s best interests to make the declarations sought. Were the declarations made, it would, he said, lead to a significant interference with X’s ECHR, Art 8 rights which would not be necessary or proportionate.
The outcome of this case was incredibly sad for the parents and would likely have been a difficult decision for the judge to make. It highlights how very fact specific these types of cases are and how important it is to have solid evidence as to wishes if written consent is not available. Written consent, however, will always be the gold standard, saving left-behind loved ones from having to mount difficult and time-sensitive cases in court.
The Y v A Healthcare case was successful because Y and Z were already undergoing fertility treatment. But what of those couples who have not yet started trying for a baby or who don’t need fertility treatment? In those circumstances there would be no clinic or HFEA 1990 forms to prompt a discussion about posthumous use of gametes which could be relied upon. And what of young adults joining the armed forces, or going on a gap year, or studying abroad? Should discussions be had with parents about posthumous grandchildren?
Perhaps, as well as making a will or choosing an attorney should they become incapacitated, people should also consider their reproductive legacy. Whether they agree to posthumous use of their gametes or not, they should make those intentions clear and in writing – whether via an email to their partner, a provision in their will, a letter or even a post-it note – to their loved ones.
While death is always an uncomfortable subject, thinking about and preparing for scenarios such as those discussed above could be beneficial should the worst happen.