When consent is given to eggs, sperm or embryos being stored or used, the gamete provider is asked to decide what should happen if they die or become mentally incapable. They can allow their partner (or, if they are a donor, their recipient) to proceed with treatment using their gametes or embryos after they have died. It is very important that consent is given carefully and with sufficient detail, since the consent will be relied on after they have died and by then it will be too late to clarify their intentions.
As a general rule, the law is very clear about consent, and posthumous conception is only possible where there is a written signed consent to post-death storage and use (although consents provided before 1 October 2009 only had to be in writing and not signed). Timing is also often an issue, since consent to storage cannot be renewed or extended after the gamete provider has died.
However, there are some rare exceptions to this general rule. For example, Diane Blood fought a renowned legal battle to conceive using her deceased husband's sperm (which had been collected without his consent after he was unexpectedly incapacitated by meningitis). The court ultimately decided that it was an infringement of EU law to deny Mrs Blood her right to seek treatment elsewhere in Europe. Although treatment could not lawfully take place in the UK, the HFEA allowed Mrs Blood to export her husband's sperm to Belgium where she was successfully treated.
Parenthood after posthumous conception: mothers
If a woman's stored eggs or embryos are used to conceive a child (for example through surrogacy) after she has died, she is not treated as the legal mother. In line with the general law on parenthood, the woman who carries the child is treated as the mother.
Parenthood after posthumous conception: fathers
If a man's sperm or embryos are used to conceive a child after he has died, the position is a little more complex.
When the laws on parenthood were first passed in 1990, they included a clear provision that any man who conceived posthumously would not be treated as the legal father. The reason for this was to prevent practical difficulties; for example, a man's estate could not be wound up if there remained a possibility that he could conceive a child in the future who might have a claim to a share of the assets. However, in 2003, it was recognised that men conceiving posthumously should be acknowledged as the fathers of their children. The law was amended to allow a father conceiving posthumously to be named on his child's birth certificate.
This has left a rather complex set of rules on parenthood in posthumous conception cases:
- If a man dies when his wife or partner is pregnant, he is treated as the father for all legal purposes, including property rights and inheritance. This applies both where he is the biological father and in certain circumstances where donor sperm has been used.
- If a woman is inseminated with her husband or partner's sperm after his death, or if embryos are transferred to her after his death that are either created with his sperm or created with donor sperm before he died, he can be named on the birth certificate if his wife or partner makes a special written election within 42 days of the birth. However, he is not the legal father for any purpose other than naming him on the birth certificate.
- If a woman is inseminated with donor sperm after her husband or partner's death, or if embryos are transferred to her that were created with donor sperm after his death, the man is not the father for any purpose and cannot be named on the birth certificate.
Parenthood after posthumous conception: lesbian partners
The Human Fertilisation and Embryology Act 2008 introduced parallel provisions for same-sex partners where a surviving partner conceives after her partner's death (after 6 April 2009). Because a lesbian couple invariably conceive with donor sperm:
- A deceased non-birth mother is treated as a parent for all legal purposes where the birth mother is pregnant at the time that she dies.
- A deceased non-birth mother can be named on the birth certificate as a parent (but is not a parent for any other purpose), if an embryo was created with donor sperm before she died, and then transferred to her partner after her death.
NGA publication: Birth after death: creating life after a parent has died
Natalie's article, published in the Infertility Network UK magazine in winter 2010, explains the law on posthumous conception and the importance of giving clear consent.