Posthumous Conception Law: Should I Consider This?

4 January 2024

Individual fertility is precious and fragile, making it worthy of protection in life and after death. A person’s individual fertility enables the conception of a biological child. However, their fertility is impacted by age, health, declining fertility rates, personal circumstances, unexpected accident and death. As such, it is important to proactively consider and actively protect individual fertility and biological legacy and not leave this to chance.

What is Posthumous Conception?

Posthumous conception encompasses conception and birth of a child using the eggs or sperm (or embryos created with these) from a deceased loved one (e.g. husband, wife, partner, son, daughter). Situations involving posthumous conception can arise unexpectedly in life and after death, requiring urgent decisions and actions as a result of:

  • Terminal illness (e.g. cancer),
  • Medical negligence,
  • Fatal accident,
  • Sudden and unexpected death,
  • Absence of legally compliant written consent.

The death of a loved one can be devastating for surviving partners, spouses and relatives. It can also create complex issues in seeking to fulfill a deceased loved one’s family building wishes and preserve their biological and genetic legacy.

Is Posthumous Conception Legal in the UK? 

Yes, posthumous conception is legal in the UK provided it complies with specific legal requirements set out in the Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Act 2008. This requires written and signed consent by the egg/sperm provider that has not been withdrawn for posthumous storage of eggs and sperm, creation of embryos using the person’s eggs/sperm and their use in posthumous fertility treatment. In doing so, they must specify the purpose/s for which the eggs, sperm or embryos are to be used (e.g. posthumous conception, training or research).

As a result, individuals need to carefully consider and record their consent in writing for their eggs, sperm and embryos to be lawfully stored and used in posthumous fertility treatment and surrogacy. This can be achieved through the completion and signing of relevant HFEA Consent Forms at a UK fertility clinic.

However, when someone has lost capacity (e.g. on life support) or died without providing clear lawful written consent to the collection, posthumous storage and use of their eggs or sperm (or embryos comprising their gametes) in posthumous fertility treatment this can create complex legal and practical issues about:

  • Extraction of sperm and eggs.
  • Storage of frozen eggs, sperm and embryos.
  • Consent to posthumous conception with fertility treatment, donor conception and surrogacy.
  • Export of eggs, sperm and embryos for posthumous storage and treatment purposes.

In the absence of lawful consent, eggs and sperm and embryos cannot be posthumously stored or used in fertility treatment in the UK and legal rules say they must be discarded. This can create challenging legal issues in practice, resulting in urgent and/or complex applications to the English Court  for special legal rulings to extract eggs and sperm, store and safeguard gametes and embryos and permit their use posthumously in fertility treatment and surrogacy and requiring: careful in-depth assessment of all relevant evidence, preparation of bespoke legal documents, strategic legal arguments and expert legal representation to maximise a successful outcome. The English Court will carefully scrutinise such applications and determine each case on its own merits.

To learn more about posthumous conception law click here.

Posthumous Conception Lawyer

Life is not risk free and no one is immune from the risk of illness, injury, accidents or changes in personal situations which can result in the loss of their own or a loved one’s fertility, family building wishes and biological legacy. Added to this, UK fertility and posthumous conception law is complex and this can leave people’s fertility unprotected and prevent the posthumous storage and use of their eggs, sperm and embryos in fertility treatment in the absence of compliance with the relevant legal requirements.

Need a posthumous conception lawyer? If you would like to discuss your situation or you need effective legal strategies and representation to navigate posthumous conception law in the UK contact Louisa Ghevaert by email or by telephone +44 (0)20 7965 8399.

Louisa Ghevaert

Image: Louisa Ghevaert, CEO & Founder Louisa Ghevaert Associates

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