Vardags Family Law Essay competition 2024/25 | Chloe Wilson

Gamete Use Beyond the Grave: Should individuals be permitted to use the sperm of their deceased partner to conceive a child in the absence of written consent?

Author: Chloe Wilson - Queen Mary University of London

Introduction

Modern technology has now made it possible for gametes to be used beyond the grave to posthumously conceive a child. (1) With such comes great legal, ethical, and even criminal complexities. The increasing number of applications to use the genetic material of the dead(2), in the absence of their consent, makes it significant to analyse this area of law. Subsequently, this essay will examine the current English law on posthumous conception, international perspectives, and motivations for the procedure. Its worthy criticisms will then be discussed to argue why individuals should not be permitted to use the sperm of their deceased partner to conceive a child in the absence of written consent.

What is posthumous conception?

Posthumous conception is the use of an individual’s gametes to create life after they have died. (3) The retrieval of sperm for posthumous conception can be obtained by either: using sperm that was retrieved prior to the father’s death and then frozen for later use or using sperm that was retrieved from the deceased father shortly after death. (4) The latter is most commonly achieved through a process known as electro-ejaculation, which involves the penetration of an electrical probe into the rectum, stimulating the prostate for ejaculation, and retrieving the sperm using a catheter inserted into the urethra. (5) The frozen sperm is then used to artificially inseminate the living partner or implanted into a surrogate to carry the couple’s child. (6) It is, therefore, unsurprising that posthumous conception poses significant moral and ethical debates and countries like Canada, France, Germany, and Sweden have banned it altogether. (7)

Current English law

The United Kingdom allows posthumous conception, though the Human Fertilisation and Embryology Act 1990 requires prior explicit, written consent from the deceased. (8) However, the courts have bypassed this rule by allowing the sperm to be taken out of the country to conceive the posthumous child, in the absence of written consent. (9) 

It is best to illustrate the current stance of English law by analysing the facts of the recent case of Jennings v Human Fertilisation and Embryology Authority. (10) The case involved a male applicant, Mr Jennings, who wished to obtain a declaration that would make it lawful for him to use an existing embryo, made up of his deceased wife’s egg and his sperm. Jennings wished to have this embryo implanted into a surrogate to manifest his last chance of having a child with his late wife, Ms Choya.

Prior to Ms Choya’s death, the couple were receiving fertility treatment and, following a successful embryo implantation, Mrs Jennings fell pregnant with twins. However, at 18 weeks pregnant, she died unexpectedly in 2019. This left just one remaining embryo which was created in 2018 and was being stored at the fertility clinic. Mr Jennings hoped to use this embryo despite the fact Ms Choya had not given written consent for this embryo to be used after her death.

During the fertility treatment, both Mr Jennings and Ms Choya completed HFEA forms regarding the treatment process. Mr Jennings completed the MT form: a man’s consent to treatment and storage. Ms Choya also completed the WT form: a woman’s consent to treatment and storage. However, at the time, only the MT form provided the opportunity to consent to the use of an embryo after death. For Ms Choya to provide her written consent, she would have needed to have completed another form, which she was made aware of in the WT form. In the three out of four WT forms Ms Choya completed throughout the IVF treatment, she consented for the embryos to be used post-death. Yet in the fourth, final form, which regarded the embryo in question in this case, she did not consent. Mr Jennings explained that, as this was the last remaining embryo in storage, the couple intended for this last one to be reserved for use with a surrogate if their last round of IVF treatment failed. He also added that neither himself or his wife were fully aware of the significance of the part of the WT form which detailed Ms Choya could consent to the use of the embryo post-death in another form, nor that this part was discussed with the clinic, as well as the fact that Mr Jennings had consented to posthumous conception, yet Ms Choya had not. Mr Jennings pleaded that had his wife had been provided with the additional form specific to posthumous embryo use, she would have given her consent. He testified that: ‘Fern and I did not make a specific request for an additional consent form to permit the use of our embryo in surrogacy after Fern’s death because we were caught up in the process of trying to create a life and had no reason to consider the risks or implications of Fern’s death.’ (11) Subsequently, the court was tasked with deciding whether Mr Jennings could use this embryo in the absence of his wife’s written consent.

Theis J concluded that Mr Jennings was permitted to use the embryo. She emphasised that although written consent is fundamental to the HFEA 1990, this is not to be ‘considered in a vacuum’ but with contextual circumstances. (12) She continued, stating that the WT form Ms Choya had completed was not clear as to how she could consent to posthumous embryo use, (13) thus she was not provided with a ‘sufficient opportunity’ to give her written consent. (14) Theis J was satisfied that, had this opportunity been given, Ms Choya would have consented. (15) Regarding Mr Jennings’ Article 8 right to privacy and family life, it was found that this had been disproportionately interfered with, and such an interference would be ‘significant, final and lifelong’, which could not be sufficiently justified. (16) She recommended that the written consent requirement be read down in cases where insufficient opportunity was provided to give consent and, if it were provided, consent would have been given. (17)

Jennings is a significant case and highlights how English law is willing to replace the strict written consent rule, detailed in Schedule 3, with inferred consent. (18)

International perspectives

After examining English law, it would be useful to assess how other jurisdictions approach posthumous conception.

Canada, France, Germany, and Sweden have banned it altogether. (19) However, others are more liberal. The US and Belgium do not require written consent from the deceased and Israel permits the retrieval and transfer of sperm after death at the request of the living partner. (20)

Israel is overwhelmingly pro-posthumous conception due to the constituently protected right to procreate. (21) The Israeli Supreme Court has even held that a female’s right to procreate can outweigh her partner’s right not to be a parent. (22) The decision rested on the facts that parenthood and procreation are ‘basic and existential value[s] both for the individual and for the whole of society’ (23) and ‘if you take parenthood away from someone, it is as if you have taken away his life.’(24)

Such international perspectives suggest that English law sits somewhere in the middle on the strictness on posthumous conception spectrum. This essay will therefore follow with reasons that suggest English law should relax, tighten, or remain as it is.

Motivations for posthumous conception

Motivations for posthumous conception include, although far from all, genetic continuity, the manifestation of the deceased’s wishes, and the fulfilment of the living partner’s wishes.

Firstly, genetic continuity is the deceased’s wish to leave a part of themselves in the world following their death. (25) Particularly in cases where the deceased has not already had any children, posthumous conception offers a way to create a genetic legacy. (26)

Secondly, the manifestation of the deceased’s wishes. In the case of Jennings, illustrated above, it was clear that Ms Choya wanted children, and thus posthumous conception granted her her last opportunity to fulfil that wish. (27)

Thirdly, the fulfilment of the living partner’s wishes. In the case of Y v A Healthcare Trust, (28) a couple were receiving fertility treatment for their second child before Z was involved in a motorcycle accident which rendered him severely brain damaged. Thus, Z was incapacitated and was unable to give the consent required under Section 3 to permit his wife to posthumously conceive their second child. Y had pleaded that not continuing with the fertility treatment would leave her with an ‘irreplaceable hole’. Amongst the consideration of the interests of Z, the granting of the application was attributed to the fulfilment of Y’s wishes.

Criticisms of posthumous conception

It is understandable that posthumous conception is highly criticised, with focuses on its legality, the autonomy and dignity of the deceased, and the interests of the posthumously conceived child.

Firstly, the autonomy and dignity of the deceased. It is commonly accepted that the deceased are to be treated with respect as it would be an offence against them not to do so. (29) Though the deceased cannot enforce their rights, society still owe them duties, (30) like the duty ‘to protect from violation’ (31). Such rights of the dead are not unfamiliar as we respect the deceased’s wishes through wills. (32) Therefore, where gametes have not already been retrieved prior to death, it appears consistent to translate the respect for the dead to posthumous conception, particularly given the invasive nature of posthumous sperm retrieval. Whilst these intrusive procedures are justifiable where explicit consent is given, the English courts ought to tread more carefully where mere indications, or even silence, are argued to amount to consent to interfere with the dead. (33)

Secondly, proposals for the reconsideration of the legality of posthumous conception. Cherkassky offers a unique argument that posthumous sperm retrieval could potentially qualify as a crime under Section 70 of the Sexual Offences Act 2003: the ‘sexual penetration of a corpse’. (34) Although sperm retrieval has no sexual motive, the insertion of the electrical probe alone could satisfy the offence. (35) Furthermore, it does not seem farfetched to argue that posthumous sperm retrieval is not much different to necrophilia. (36) Subsequently, the criminalisation of posthumous electro-ejaculation, in the absence of consent, under Section 70 would protect deceased men from being exploited and ensure that they maintain full autonomy over their genetic continuity beyond the grave. (37)

Thirdly, and arguably most significantly, the interests of the posthumously conceived child. It is convincingly argued that posthumously conceiving a child would be in no interest of theirs due to the impossibility of forming a relationship with their father. (38) It also poses practical issues for the child as the deceased father cannot be named as a parent on the child’s birth certificate, nor can the child enjoy any inheritance. (39) It has long been recognised that such a child may suffer significant psychological issues. (40) Posthumously conceived children have been termed as ‘band aid babies’, filling the void left from the death of their father and assisting their mother through the grieving process. (41) As such, the English courts must not underestimate the full implications of permitting posthumous conception.

Conclusion

In conclusion, individuals should not be permitted to use the sperm of their deceased partner to conceive a child in the absence of written consent. The emotional complexity of the cases should not steer the English courts away from adopting the strict consent requirement detailed in Schedule 3 of the Human Fertilisation and Embryology Act 1990. Although it would be easy to sympathise with those that would be cast out by the narrow interpretation, the risks of abusing the autonomy of and respect for the deceased, its likeness to necrophilia, and the overpowering negative implications for the posthumously conceived child weigh the tipping scales towards a tightening on posthumous conception. Given the growing numbers of applications to use gametes beyond the grave, reform to the law on posthumous conception must be made imminently and meticulously to avoid inconsistencies and statutory misinterpretations.

footnotes

(1) Neil Maddox, ‘Inheritance and the posthumously conceived child’ [2017] Conv 6, 408.

(2) Lisa Cherkassky, ‘Is Interference with a corpse for procreative purposes a criminal offence?’ [2022] MLR 85(3), 577.

(3) G. Bahadur, "Death and conception" [2002] 17 Human Reproduction 2769

(4) Maddox (n 1).

(5) Cherkassky (n 2), 585.

(6) ibid.

(7) Maddox (n 1).

(8) Human Fertilisation and Embryology Act 1990, Schedule 3, para 1.

(9) R v HFEA ex parte Blood [1997] 2 All ER 687; [1997] 2 WLR 806; [1999] Fam 151.

(10) Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam); [2023] 1 10 F.L.R. 476; [2022] 6 WLUK 259 (Fam Div).

(11) ibid [43].

(12) ibid [82].

(13) ibid [88].

(14) ibid [90].

(15) ibid [92].

(16) ibid [102].

(17) ibid [104].

(18) Lisa Cherkassky, ‘Jennings v Human Fertilisation and Embryology Authority: posthumous surrogacy with inferred consent’ [2023] LQR 139(Jan), 20.

(19) Maddox (n 1).

(20) Maddox (n 1).

K. Tremellen and J. Savulescu, ‘A Discussion Supporting Presumed Consent for Posthumous Sperm Procurement and Conception’ [2015] 30 Reproductive Biomedicine Online 6, 7.

(21) Rhona Schuz, ‘The Developing Right to Parenthood in Israeli Law’ [2013] INT’l SURV FAM L 197, 197–201.

(22) CFH 2401/95 Nahmani v Nahmani [1995–6] ISR L REV 1

(23) CFH 2401/95 Nahmani v Nahmani [1995–6] ISR L REV 1, 38–9.

(24) CFH 2401/95 Nahmani v Nahmani [1995–6] ISR L REV 1, 40.

(25) Shelly Simana, ‘Creating life after death: should posthumous reproduction be legally permissible without the deceased’s prior consent?’ [2018] Journal of Law and the Biosciences 5(2), 329.

(26) Jennings (n 10).

(27) Jennings (n 10).

(28) Y v A Healthcare NHS Trust [2018] EWCOP 18; [2019] 1 F.L.R. 679; [2018] 8 WLUK 10 (CP).

(29) Airedale Trust v Bland [1993] AC 789, 829 (Hoffmann LJ).

(30) Cherkassky (n 2) 589.

(31) Pierce v Swan Point Cemetery [1872] 10 R.I. 227, 237-239.

(32) Cherkassky (n 2) 590.

(33) Woodward v Commissioner of Social Security [2002] 760 NE2d 257, 259, 270.

(34) Cherkassky (n 2) 585.

(35) Cherkassky (n 2) 586.

(36) ibid.

(37) Cherkassky (n 2) 596.

(38) Maddox (n 1).

(39) Human Fertilisation and Embryology Act 1990, s 28 (6).

(40) Committee of Inquiry into Human Fertilisation and Embryology, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock Commission, Cm 9314, 1984) para 4.4.

(41) Lisa Cherkassky, ‘Y v A Healthcare Trust and the Mental Capacity Act 2005: taking gamete retrieval to the bank’ [2019] LQR 135(Apr), 212.