23 January 2025
The law governing posthumous conception in England and Wales sets out clear legal requirements designed to protect an individual’s right to consent to the use of their eggs, sperm or embryos in treatment after their death. Eggs, sperm and embryos represent a special class of reproductive cells. They are very private and intimate, representing unique reproductive building blocks in human conception and an individual’s genetic legacy. As such, the law is designed to prevent the unauthorised use of a person’s eggs, sperm (or embryos comprising these) in treatment without their specific consent in life and after death. However, the prescriptive legal framework governing posthumous conception is not without its challenges in real life. What can be done to overcome these challenges? Moreover, what can be done when individuals unexpectedly become ill, incapacitated or die without documenting their wishes for the storage and use of their eggs, sperm or embryos after death?
Consent Requirements
The cornerstone of law governing posthumous conception in England and Wales is informed and explicit written and signed consent by the gamete (egg or sperm) provider. An individual’s right to consent to posthumous conception and parenthood is enshrined in statute in the Human Fertilisation and Embryology Act 1990 (as amended). For consent to be legally effective for posthumous conception, the law specifies that an individual must document in writing with their signature their informed consent for the storage and use of their eggs, sperm or embryos in fertility treatment after their death. An individual can document their consent in writing by the completion and signing of specific HFEA consent forms at UK fertility clinics. In the absence of effective, signed and written consent from the gamete provider, the law stipulates that a deceased’s gametes (or embryos comprising these) cannot continue to be stored or used in fertility treatment and they must be destroyed.
Challenges in Practice
Whilst the prescriptive legal rules governing posthumous conception in England and Wales are designed to protect an individual’s reproductive decision-making and consent for the storage and use of their eggs, sperm and embryos after death, this legal framework can in some cases fall short in practice. Firstly,the process for completing consent forms for posthumous conception usually takes place in a UK fertility clinic setting when people go there for fertility preservation or to embark upon fertility treatment. But not everyone actively engages with a UK fertility clinic or seeks fertility treatment, creating a missed opportunity for some in practice.
Secondly, when people complete consent forms at UK fertility clinics recording their wishes for the storage and use of their eggs, sperm and embryos they are often in the midst of a busy fertility treatment process and having to take in lots of other information and make important medical decisions. Furthermore, there might be time pressures meaning there is less time to spend and reflect on decisions about the storage and use of their gametes and embryos, particularly if they are up against rapidly declining fertility levels or they have recently received a cancer diagnosis and need urgent fertility preservation treatment before undergoing surgery and chemotherapy. This can lead to short term decision-making and lack of awareness, understanding and consent about what should happen to their eggs, sperm or embryos in the event of their death, especially if they are expecting to use their gametes or embryos in their own treatment in future.
Thirdly, it is still too often the case that people do not sufficiently review, revisit and update the terms of their written consent for the storage and use of their eggs, sperm and embryos. Once their eggs, sperm and embryos are frozen the importance of reviewing, updating or withdrawing their consent if their personal situation changes or they encounter health problems or their prognosis moves from curative to palliative care can be overlooked. The provision of consent should not be viewed as a one-off activity.
Fourthly, individuals often avoid or overlook the importance of discussing posthumous conception with their partners, spouses and family. In doing so, this can create missed opportunities to discuss what they would want to happen to their eggs, sperm (or embryos comprising these) and missed opportunities for their loved ones to help facilitate and support them evidence and document consent for posthumous conception.
Specialist Fertility and Posthumous Conception Law
Specialist legal advice can help provide effective legal strategies to effectively manage pre-conception, pregnancy, birth and posthumous conception. We can advise and help document an individual’s consent for collection, storage and use of their eggs, sperm (or embryos comprising these) in fertility treatment during life and after death. We can also help revisit, update and withdraw consent when individual’s circumstances or wishes change.
It can in the absence of informed lawful written consent to posthumous storage and use of eggs, sperm and embryos we can (where appropriate) also make applications to the English Court or HFEA seeking posthumous conception legal rulings to:
- Seek 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.
Illness, accident and death can strike at anytime, making it important to proactively protect fertility and genetic legacy. Individuals need to make informed decisions about the storage and use of their eggs, sperm and embryos during life, in treatment and after death. Additionally, their wishes must be lawfully recorded in writing and signed to provide effective legal consent. In the absence of this, it can create complicated situations and challenging legal issues for surviving partners, spouses and wider family. Without the right legal consents, eggs, sperm and embryos cannot lawfully be collected, stored and used in treatment after death, leaving family members grieving not just the loss of their loved one but the loss of their unfulfilled family building and genetic legacy too.
To find out more about posthumous conception law in the UK click here.
If you would like to discuss your situation or you would like specialist legal advice contact Louisa Ghevaert by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.
Images: Louisa Ghevaert, CEO & Founder Louisa Ghevaert Associates
