Posthumous conception: a ray of hope for the future

I was proud to be part of the wife’s specialist fertility law team in the groundbreaking case of Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18.  In a unique legal ruling, The Court  of Protection (‘COP’) sanctioned the extraction, storage and posthumous use of the husband’s sperm following an accident and catastrophic injury.

The husband and wife had wanted to conceive a child and were in the early stages of fertility treatment, when he was involved in a tragic accident that caused a devastating brain injury. It was doubtful whether the husband had given his written consent to the storage and use of his sperm in fertility treatment in the legally required form, although he had discussed and agreed with his wife that his sperm should be used by her in fertility treatment and in the event of his death.

Only a fertility clinic licensed by the HFEA could extract and store his sperm and that could only be achieved with his effective consent.  Section 4(1A) of the Human Fertilisation and Embryology Act 1990 prohibits the procurement, testing, processing or distribution of sperm without a licence.  Very sadly, the husband’s brain injury left him without capacity to provide the required consent.

The Human Fertilisation and Embryology Authority (‘HFEA’) had no legal powers to authorise the retrieval, storage and posthumous use of the husband’s sperm in treatment in the UK.  The wife was unable to rely on the assistance of the Human Tissue Authority as sperm and eggs are specifically excluded from its remit under the Human Tissue Act 2004.  Furthermore, there was no case law which covered this situation.

Wanting to honour her husband’s wishes and family building plans, the wife applied to the COP for permission for the retrieval, storage and posthumous use of his sperm.  This was a groundbreaking move because the COP had never before been involved in a posthumous conception context.  The COP’s jurisdiction usually covers assistance with property, financial matters and decisions about personal welfare for people who lack capacity to make decisions for themselves.

The COP used powers under the Mental Health Act 2005 to reach a judgment that it was in the husband’s best interests for his sperm to be retrieved, stored and used by the wife in posthumous treatment in the UK.  The COP took into account all of the facts of the case and relied on evidence that the husband and wife had discussed and agreed his sperm should be used in fertility treatment and in the event of his death, they had been referred for fertility treatment and were under the care of a fertility clinician and had booked a further clinic appointment.

The case shines a light on the importance of taking ownership of your fertility and conception plans in the short, medium and longer term.  There are no guarantees in life and no one is immune from the risk of illness, injury, accidents or changes in personal situations which can have a fundamental impact on your or a loved one’s fertility.  Moreover, the law is complex and it does not always protect people or their future family building wishes.  Specialist fertility law advice can help you make informed decisions and proactively protect and maximise your fertility and family building arrangements.