Posthumous Conception Law

We recognize that  decisions about whether to safeguard fertility and pass on biological heritage to conceive a child after death (posthumous conception) have important and enduring implications for individuals, spouses, partners and families.

When might posthumous conception arise?

An individual’s fertility and biological legacy is precious and fragile and it can be lost through:

• Terminal illness (e.g. cancer),
• Medical negligence,
• Fatal accident, or
• Unexpected death at any point.

This makes it important to take proactive legal and practical measures to protect your or a loved one’s fertility and family building wishes and plans and not leave matters to chance.

Posthumous conception law in the UK

Posthumous conception law (governing the use of eggs, sperm and embryos in assisted conception treatment after death) is complex in the UK. Consent to the storage and use of an individual’s eggs, sperm or embryos comprising their gametes after their death is governed by specific legal provisions under the Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Act 2008. In the absence of lawful consent, gametes and embryos cannot be stored or used in fertility treatment in the UK and legal rules say they must be discarded.

Posthumous conception law requires great care in recording consent in HFEA Consent Forms at UK fertility clinics to ensure that an individual’s eggs, sperm and embryos can lawfully be stored and used in posthumous fertility treatment and surrogacy in accordance with their wishes and that the legal requirements have been complied with.

We provide expert and bespoke legal advice and solutions to enable individuals to maximise and protect their own and a loved-one’s fertility. This can help safeguard biological legacy and future family building plans and wishes in the event of death.

When might I need a posthumous conception legal ruling?

We also navigate complex and sensitive situations where a loved one has lost capacity (e.g. on life support) or died without providing clear lawful written consent to the collection, storage or use of their eggs or sperm (or embryos comprising their gametes) in fertility treatment or surrogacy after death. In these situations, we can in appropriate circumstances make bespoke applications to the English Court (the Family Court or the Court of Protection) for orders to extract eggs and sperm, store gametes and embryos and permit their use posthumously in fertility treatment and surrogacy. This includes situations where:

• An individual was in the early stages of fertility treatment but had not yet completed the requisite HFEA consent forms concerning posthumous conception before their unexpected death.
• An individual was diagnosed with cancer and underwent urgent fertility treatment to preserve their eggs or sperm before surgery or chemotherapy but did not subsequently update their written consent to enable their partner or loved one to use their stored gametes in posthumous fertility treatment and/or with surrogacy before their death.
• An individual unexpectedly dies having previously undergone fertility treatment leaving behind their remaining stored eggs, sperm or embryos comprising their gametes but without lawful written consent to their use in posthumous conception or surrogacy (e.g. during pregnancy or birth).
• An individual is incapacitated or dies suddenly (e.g. in a road traffic accident, collapses playing sport, suffers a brain haemorrhage, stroke or heart attack) without providing lawful written consent to the collection, storage and posthumous use of their gametes.

In the absence of informed lawful written consent to posthumous storage and use of eggs, sperm and embryo we can (where appropriate) make applications to the English Court seeking posthumous conception legal rulings to:

• Extract sperm or eggs.
• Enable storage and posthumous fertility treatment in the UK.
• Enable gametes and embryos to be exported abroad for storage and posthumous fertility treatment.

In doing so, we will carefully assess all of the relevant clinical, written and other evidence, prepare bespoke legal documents and craft robust and strategic legal arguments to support a court application for posthumous conception. We will also address any issues raised by the Human Fertilisation and Embryology Authority (HFEA), clinic or the Court to maximise a successful outcome and help honour a deceased individual’s wishes and biological legacy.

You can find out more below about posthumous conception law cases and read articles and commentary from our expert posthumous conception lawyer Louisa Ghevaert.