Posthumous conception: Life after death

The case of Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18 marks a legal first. In a groundbreaking judgment, the wife’s specialist fertility law team at Vardags won a unique legal ruling from The Court of Protection to extract and store sperm from her dying husband for her posthumous use in treatment.

The husband and wife were in the early stages of fertility treatment when he was involved in an accident that caused a catastrophic brain injury. It was doubtful whether the husband had given his written consent to the storage and use of his sperm in fertility treatment as prescribed by the Human Fertilisation and Embryology Act 1990 (‘HFEA 1990’). As a result, his sperm could not be harvested and stored for use in treatment at a licensed UK fertility clinic.

However, this case also serves as a stark reminder that incapacity, illness or death can strike anyone at any time. This makes it important to take ownership of one’s fertility and conception arrangements and not leave fertility preservation and maximisation to chance. Assisted reproduction law is complex and it does not always safeguard sperm, eggs and embryos and enable their use in fertility treatment. Specialist fertility law advice can help people understand, make informed decisions and take active steps to preserve and maximise their fertility and future family building arrangements for themselves and their loved ones”.

Legal difficulties

In Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18 the wife was faced with the unexpected loss of her husband and lacked the ability to retrieve, store and use his sperm after his death. Under common law, it would have constituted assault to extract the husband’s sperm without his consent.

Section 4(1A) of the HFEA 1990 prevents the procurement, testing, processing or distribution of sperm without a licence from the Human Fertilisation and Embryology Authority (‘HFEA’), which oversees and licences UK fertility clinics and treatment. Accordingly, only a licenced fertility clinic could extract and store the husband’s sperm and that could only be done with his written consent. The husband’s catastrophic brain injury prevented him from giving that consent.

There was no case law which provided specific assistance. The HFEA had no power to authorise the extraction, storage or posthumous use of the husband’s sperm in treatment in the UK. Furthermore, the wife could not rely on the Human Tissue Authority to achieve the extraction, storage and posthumous use of her husband’s sperm because gametes (sperm and eggs) are specifically excluded from its remit under the Human Tissue Act 2004.

The wife’s application to the Court of Protection therefore represented the last chance of securing extraction, storage and posthumous use of her husband’s sperm. It was a groundbreaking move because the Court of Protection had never before intervened in a situation like this. The Court of Protection’s usual remit is to assist with property, financial matters and personal welfare of individuals who lack the capacity to make their own decisions.

In a bold and enlightened move, the Court of Protection used provisions in the Mental Capacity Act 2005 to rule that it was in the husband’s best interests for his sperm to be extracted and stored for posthumous use in treatment by his wife. The Court of Protection reached this decision after carefully considering the facts of the case and took into account the husband’s settled intention to have a baby with his wife, that he had discussed and agreed posthumous use of his sperm with his wife, that he had sought a referral for fertility treatment and that he was under the care of a fertility clinician with an upcoming appointment to progress fertility treatment with his wife.

The case of Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18 highlights the importance of proactively managing fertility issues, conception arrangements and family building plans. Human fertility is fragile and it can be unexpectedly lost or impaired.

Around 10-15% of men and women are believed to be infertile and that figure increases when subfertility is factored in. Fertility problems are compounded with age and when illness, injury and accidents occur. One in 7 couples struggle to conceive. Added to this one in 4 pregnancies in England and Wales will end in miscarriage.

It is all too easy to be lulled into a false sense of security about your own or a partner’s fertility. More needs to be done to safeguard individual fertility. Specialist fertility law advice is an important part of the fertility treatment process and not simply an “add-on”.

You can read the judgment in full here.