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The significance of fertility: A landmark ruling on posthumous conception

3 September 2018
By Louisa Ghevaert
Head of Fertility, Surrogacy & Modern Families – Director Family Law at Vardags
Appeared in BioNews 965

The recently published case of Y v A Healthcare NHS Trust is a unique and important legal ruling on posthumous conception in the UK (see BioNews 959). The decision sends an important message that individual fertility and reproductive legacy – not just property – can warrant protection.

It marks a legal first because the Court of Protection (COP) intervened, granting permission for the extraction, storage and posthumous use of a fatally injured man's sperm when existing law failed to protect his family-building wishes. The COP is a special court that exists to make decisions in the interests of those who are unable to do so for themselves.

The man and his wife, whose legal team I was a part of, had been referred to, and met, a consultant and specialist in infertility treatment in May. They had undergone tests and the husband had provided a semen sample for sperm analysis. They completed a large batch of forms and discussed, among other things, the possibility of posthumous conception. They had scheduled a further appointment on 16 July to begin IVF treatment, but just days before the husband was involved in an accident and suffered a catastrophic brain injury. 

It was doubtful whether the husband had completed and signed the correct HFEA consent form or an alternative form. His critical injuries meant he could no longer provide his written consent to the storage and posthumous use of his sperm.

In an enlightened decision on 12 July, Mrs Justice Gywnneth Knowles sitting in the COP directed that: first, it was lawful for the head of the fertility clinic to extract the man's sperm; second, that the sperm be stored before and after his death upon the signing of the relevant consents; and third, that his sperm and any embryos comprising his sperm could be used posthumously for infertility treatment. 

Importantly, Justice Knowles exercised the court's powers under s16(2)(a) of the Mental Capacity Act 2005 (MC Act 2005) to order that a named person (a relative of the man) could sign the consent required by paragraph 1(2) of Schedule 3 of the Human Fertilisation and Embryology Act 1990 (HFE Act 1990) for the storage and posthumous use of his sperm. She ruled that the consent would be legally valid on the basis that it was signed in the man's presence and witnessed. This overcame the lack of written consent by the man and in doing so, it marks the intersection of the HFE Act 1990 and the MC Act 2005. 

Time was of the essence. The man's sperm was extracted and stored that evening and he died the following day.

This unique legal ruling was possible because the wife's legal team, the HFEA, the Official Solicitor and the hospital and clinicians proactively worked together to find a solution. All those involved wanted to help save the husband's sperm and provide hope for the wife that she may be able to fulfil her and her husband's wishes for another child. While this ruling also provides hope for others, future applications will need to have a strong factual basis before the Court of Protection will exercise its powers under the MCA 2005.

The fact that the Court of Protection recognised the husband's family building wishes during his lifetime and afterwards and saved his sperm is significant. The court's usual remit is to protect property, financial affairs and personal welfare of individual's who lack the mental capacity to make decisions for themselves. Its decision sends an important message that individual fertility and reproductive legacy, and not just property, can warrant protection. 

Fertility influences personal identity, relationships with loved ones and the nature and character of our families. It represents our biological heritage. At a wider level, it drives a multi-billion global fertility sector and influences science and medical technology, economics and law and policy. Individual fertility is also fragile. As this case demonstrates, fertility can be lost or compromised through illness, accident or injury at any time.

While this legal ruling marks a significant step forward, there still needs to be more understanding about the importance of fertility preservation. We can go to great lengths to future-proof other areas of our lives. However, many of us are not taking adequate steps to protect our fertility and family building plans. All too often these are being left to chance. 

More education is needed about family building options, how to maximise successful conception and the options for preserving our fertility.  There also needs to be a better understanding about the implications of this medically, legally, practically and financially. There is still too much educational emphasis on how not to get pregnant and this needs to change.

Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18
Bailii |  2 August 2018
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