How important is consent in posthumous conception?

This seminal case revolves around the application of the Human Fertilisation and Embryology Act 1990 (HFEA 1990) and is essential reading for any person who currently has embryos stored and wishes to guard against the perils of posthumous use of those embryos.  The court ruled that on ‘reading down’ the wholly inadequate forms completed by the deceased (an option available to the court under the Human Rights Act 1998), and consent could be accepted in forms other than writing when no opportunity was provided to give written consent.   

However, it serves as an important reminder to emphasise the importance of consent in fertility treatment, while recognising that, in certain narrow cases, failure to provide written consent due to administrative oversights should not outweigh a deceased individual’s expressed wishes.   

EF and AB, both natives of Country G and active members of the J religion, married in 2005. They were each the eldest of three siblings and shared a strong desire to have a large family, similar to the families they grew up in. Tragically, AB suffered a miscarriage in 2008 and faced complications during a subsequent pregnancy, resulting in the premature birth of their first daughter, X. Despite these challenges, the couple was determined to expand their family and, after years of trying to conceive naturally, sought fertility treatment at the King’s Unit (the Clinic) in 2017.

The couple underwent IVF, during which two healthy embryos were created. AB successfully became pregnant and gave birth to their second daughter, Y, in 2017. At their initial consultation, the couple was informed about the IVF process, the risks involved, and the possibility of embryo storage. They were also presented with consent forms, which included critical decisions about the fate of the embryos in the event of death or incapacity.

As part of the IVF process, both EF and AB signed several consent forms. EF completed the HFEA MT Form (Men’s Consent to Treatment and Storage Form), which outlined what would happen to his sperm and embryos in the event of his death or incapacity. EF consented to the use of his sperm and any embryos created with his sperm for AB’s treatment, should he die or become mentally incapacitated. He also agreed to be legally recognised as the father of any child born from these embryos.

AB completed the HFEA WT Form (Women’s Consent to Treatment and Storage Form), which similarly addressed the use of her eggs and embryos. Unlike the MT Form, the WT Form did not contain provisions for the posthumous use of embryos in her partner’s treatment, which created a discrepancy in their documentation. While AB consented to the use of her embryos for training purposes after her death, there was no clear consent for their use in EF’s treatment, or for a potential surrogacy arrangement.

EF’s understanding was that AB, who held strong beliefs about the sanctity of life and the divine purpose of all living beings (a core tenet of the J religion), would have consented to the use of their jointly created embryos in a surrogacy arrangement if she had been given the opportunity. AB had discussed with EF their shared desire for a large family and the possibility of having a third child.

EF’s position, supported by the testimonies of their family and friends, stated that AB was deeply committed to the idea of life continuing beyond death and would have supported the use of the embryos to bring another child into the world after her passing. Further supporting this is the couple’s broader discussions about assisted conception, including AB’s support of a sibling’s decision to freeze sperm for future use, demonstrating her comfort with the concept of posthumous reproduction.

The court was therefore asked, in the face of opposition by the regulator who had created the consent forms, to confirm that consent had been provided and allow treatment under the clinic licence for a surrogacy arrangement.

The case highlights a significant gap in previous versions of the HFEA consent forms, particularly the absence of provisions allowing a woman to consent to the use of embryos created with her eggs in her partner’s treatment after her death. This issue was previously addressed in the Jennings case, leading to updates in the HFEA consent forms. The current version of the WT Form now includes an option for a woman to explicitly state whether her partner may use her embryos in treatment after her death.

EF’s evidence, alongside the testimony of AB’s family and friends, forms the basis for his belief that AB would have consented to the posthumous use of their embryos in a surrogacy arrangement, had she been able to make such a decision. This case reminds all of us about the complexities of reproductive consent and both the legal and ethical considerations surrounding assisted reproduction, particularly in the context of posthumous use of embryos.

This judgment demonstrates the delicate balance between strict legislative requirements under the HFEA 1990 to provide certainty and the need to protect individual rights under the European Convention on Human Rights (ECHR), particularly Article 8.

While many cases have failed to persuade a court on similar issues to date, this decision underscores the flexibility of the family courts to interpret consent provisions in light of an individual’s human rights and provides practitioners with a more nuanced approach to cases involving posthumous fertility treatment going forward. However, most clinics and individuals who have their embryos currently should sense the danger shown by this case, there is a need to update old forms and ensure wishes are accurately reflected to avoid extensive and costly litigation.

Whether you are looking at fertility treatment, already have embryos stored or are a clinical professional, we have a highly experienced team of solicitors here to help you navigate through the complexities of fertility laws in England & Wales.

Our Modern Families team have leading experts, best known for their work in legal parenthood and surrogacy. You can arrange a consultation with them and explore these issues and ensure compliance with the law as you look to build a family.

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