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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. We also understand that decisions about posthumous conception can arise unexpectedly in life and after death and that this can create very challenging situations and require urgent decisions and actions.

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 and navigate complex posthumous conception law in the UK. This can 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 a posthumous conception legal ruling. 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.

How we can help

Our expert posthumous conception law services include:

  • Bespoke legal advice on posthumous conception law in the UK.
  • Preparation of legal documentation.
  • Legal representation in court proceedings for a posthumous conception legal ruling (e.g. due to difficulties with consent/omissions with HFEA Consent Forms or lack of written consent).

We provide expert tailored legal advice and representation on posthumous conception law and fertility law including:

Package One

Posthumous conception legal review

This provides initial expert legal advice to support people undertaking posthumous conception (assisted conception involving the eggs, sperm or embryos of a deceased person). It:

  • Provides legal advice on posthumous conception law in the UK.

If you require legal assistance or wish to discuss your situation please get in touch

 +44 (0) 20 7965 8399

Bespoke legal services

We provide a range of bespoke legal services that align with your needs and wishes. Our legal expertise spans the medical, fertility and family law sectors, enabling us to provide cutting-edge legal solutions.

Well Known Cases

You can read more about Louisa Ghevaert’s leading expertise in posthumous conception law in the UK:

Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18, a first-of-its kind judgment in which Louisa was part of the wife’s legal team and secured a unique legal ruling from the Court of Protection to extract and store sperm from a fatally injured man for use in posthumous fertility treatment and featured in The Independent (13 July 2018) and The Times (14 July 2018).

Other Posthumous Conception Law Cases

In X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48 the Court of Protection refused an application to collect and store sperm for posthumous conception from a 22 year-old man who suddenly collapsed playing sport and who was on life support and expected to be formally declared brain dead.

In Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) the English High Court granted a request by widower Ted Jennings to use the last frozen embryo created with his late wife (who tragically died at 18 weeks pregnant with twins) in posthumous fertility treatment with surrogacy.

In SB v The University of Aberdeen and Others [2020] CSIH 62 the Inner House of the Court of Session granted a declaration permitting a widow to use her late husband’s sperm for IVF treatment where he had only provided consent for  its use in IUI treatment and not IVF for the creation and storage of embryos.

In M v HFEA (2015) and M v HFEA (Court of Appeal, 2016), a young woman died leaving behind her frozen eggs without clear written consent to the use of these for posthumous conception. Her parents wished to use her frozen eggs (her mother proposed to carry the pregnancy) and raise the child as their grandchild. The parents made an application to the HFEA to export the frozen eggs to the USA for posthumous conception treatment, which was refused. The High Court then refused the application, but this was subsequently reviewed by The Court of Appeal who ruled that the HFEA’s decision was flawed.

Elizabeth Warren v Care Fertility (Northampton) Limited & Other [2014] EWHC 602 (Fam), Mrs Warren’s husband passed away from a brain tumour leaving insufficient lawful storage term of his sperm for her to decide whether to use this in posthumous fertility treatment to conceive a child. The High Court granted extended storage ruling that she had a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent through posthumous fertility treatment with her husband’s sperm.

In the News

Posthumous Conception Law: Should I Consider This? (Louisa Ghevaert Associates’ blog, 4 January 2024).

BBC Woman’s Hour: Posthumous Conception interview with Louisa Ghevaert, Anita Rani and Lauren McGregor (24 August 2023, Louisa Ghevaert Associates blog).

Podcast “The Intricacies of Fertility Preservation” interview with Louisa Ghevaert and Eloise Edington of Fertility Help Hub (17 December 2020), also on podcast apps Apple, Spotify and Soundcloud.

Apple podcast on Speak From The Body with Avni Touch entitled “Fertility law for modern families with Louisa Ghevaert” (26 February 2020).

BBC Radio 5 Live Interview: harvesting dead men’s sperm for posthumous conception featuring Louisa Ghevaert (25 January 2020).

“Why we need root and branch law reform” (BioNews 25 November 2019) and longer associated article “Why we need fertility law reform: the paradigm shift” (25 November 2019).

Emily Hartridge: Life you literally can’t plan for it (Louisa Ghevaert Associates’ blog 17 July 2019).

“Rachael Bland’s fight to preserve her fertility is a battle fought by many modern women” (Female First, 7 September 2018).

“The significance of fertility: A landmark ruling on posthumous conception” (BioNews, 3 September 2018).

Posthumous conception: a ray of hope for the future (Louisa Ghevaert Associates’ blog, 16 August 2018).

You can read more in our News section.

 

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