Posthumous use of Gametes and the Protection of Future Families

A Scottish court has recently ruled that a woman was able to use her deceased husband’s sperm for IVF. The couple were pursuing fertility treatment when he died from cancer. Her late husband had stored his sperm before he died in the hope of starting a family. However, he had only given consent to intrauterine insemination and not IVF. Despite this, the Court were able to use the wording in his will and ruled this as appropriate consent for IVF treatment, which stated:

“I direct my executors to ensure that my donation of sperm will be, for as long as possible, and for as long as she may wish, available to [my wife].”

In her judgement, Lord Justice Clerk Lady Dorrian stated that the specific wording of the will and the fact the couple were undergoing fertility treatment was enough to express his wish for future use of his stored gametes.

In the UK, in the ground breaking case of Y v A Healthcare NHS Trust & The HFEA & Z of 2018, the Court of Protection authorised the posthumous use of a husband’s sperm for fertility treatment, following a catastrophic accident causing brain injury which limited his capacity to consent. In this case, the husband and wife were in the early stages of fertility treatment and although they had discussed that his sperm could be used in fertility treatment in the event of his death, he had not legally consented to this before the accident. The Court of Protection ruled that it was in the husband’s best interests for the sperm to be retrieved and stored for use in posthumous treatment under the Mental Health Act 2005.

Under Schedule 3, the Human Fertilisation and Embryology Act 1990 requires consent to be given in writing and signed by the person giving it before any fertility treatment can go ahead. This is a particularly rigid piece of legislation which does not account for unexpected situations where an individual has not had the chance to properly consent to treatment. Furthermore, those wishing to use the gametes posthumously are unable to rely on the Human Tissue Authority as sperm and eggs are not within its remit under the Human Tissue Act 2004. It seems the Act requires updating so that the law could account for any wishes specified in a will, or any sufficient evidence that shows the individual was undergoing or had planned to undergo fertility treatment. This would allow for flexibility within in the Act for those still wishing to create a family.

Although this case is a step forward in recognising the wishes of those wanting to continue to start a family, the wording of the Act should be more flexible to allow for these situations so that those involved do not have to part take in stressful and time consuming court processes. This case highlights the importance of being proactive with future fertility planning and this is particularly important in the current climate, due to the growing rate of COVID-19 as unexpected deaths are unfortunately becoming more and more imminent.