Katherine Res Pritchard discusses recent high court ruling on posthumous use of an embryo

Katherine Res Pritchard is a senior director and Head of London Children at Vardags. She worked in a team alongside Ayesha on the groundbreaking legal ruling of Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18 .

In 2018, the specialist fertility team at Vardags secured a ground-breaking ruling from the Court of Protection which enabled a wife to extract and store sperm from her dying husband for posthumous use in treatment. It was a legal first, bringing with it life and hope to a wife in her darkest hour.  

The husband had been involved in a road accident with a resulting, catastrophic brain injury. Although the couple had embarked on IVF treatment prior to this, the sudden impairment of his capacity to consent meant that his sperm could not be harvested and stored for these purposes.  

The Vardags team however, took a boldly innovative approach to a matter which, never before, had seen intervention. Without the crutch of case law, chances appeared slim, but our work paid off: the Court of Protection carefully considered the husband’s settled intention to have a second child with his wife and his having sought a referral for treatment for which an appointment had been set up and declared that his sperm may be retrieved and stored for treatment.  

The judgement formed one of the most satisfying moments of our careers. It was not only a victory against all odds, but a victory which secured the chance of a life-creating legacy and sibling for their eldest child that the wife and her husband so desperately wanted.  

We hoped that this precedent would help others in this devastating situation, however rare and we are thrilled that it has. In tragically similar circumstances where a married couple have embarked on IVF and one has lost their capacity to consent, the UK High Court have very recently again dispensed with the requirement for written and signed consent for use of an embryo in posthumous treatment. Mrs Justice Theis was satisfied that that the mother had consented to the use of the embryo in the event of her death notwithstanding her lack of written consent within the specific factual matrix of this case.  

This decision, once again, powerfully illustrates the fragility of human life, family and fertility. Ordinarily, we are too busy making plans to stop and consider the events which could take the most precious things in our life away - including our own, and our partner’s, ability to conceive. But it is cases like these where, so very sadly, these issues must be brought into consideration, debated, and fought for. And we are honoured to have established a precedent where people with these issues may be able to be given a second chance.