Fertility Treatment: Preparing For The Worst

• Published date: 10 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Family Law, Personal Injury
• Law Firm: Burgess Mee
• Author: Ms Natalie Sutherland

First published by Family Law Journal (Legalease) in May 2022.

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.

Relevant law

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must be in writing and signed by the person giving consent and, to be 'effective consent', it must not have been withdrawn (Sch 3, HFEA 1990, para 1).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The terms of any consent may be varied, and consent may be withdrawn by giving written notice up to the point the embryo is used (Sch 3, HFEA 1990, para 4(1) and (2)). Where consent to the use of a stored embryo is withdrawn before its use in treatment services, all interested persons are to be notified of the withdrawal.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.

Case 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 [1999]

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...