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Posthumous conception: a legacy in life, incapacity and death

Louisa Ghevaert and Michael Mylonas QC consider the ground breaking decision in Y v A Healthcare NHS Trust and others [2018] EWCOP 18












Louisa Ghevaert, Director and Head of Fertility, Parenting & Surrogacy Law at Vardags and Michael Mylonas QC Head of the Court of Protection team, Serjeants' Inn Chambers

The Human Fertilisation and Embryology Act 1990 ('HFE Act 1990') requires the written consent of a person before their gametes can be used in any fertility treatment. That this should be explicitly required is no surprise given the serious consequences of such treatment both for the person whose gametes are used but also for any child born as a result of that use.  In that context, the case of Y v A Healthcare NHS Trust and others [2018] EWCOP 18 is a unique and significant decision. Mrs Justice Gwynneth Knowles exercised the Court's powers under s16(1)(a) of the Mental Capacity Act 2005 ('the MCA 2005') to order that a named individual could sign a consent form for fertility treatment where the husband ("P") lacked capacity following a catastrophic brain injury. Under the terms of the Order the clinicians were authorised to retrieve, store and posthumously use P's sperm. This overcame the absence of any written consent signed by P himself.


This compassionate and forward thinking legal ruling by the COP helps honour the wishes of P and his wife for further children. Her Ladyship cautioned that the case was decided on its facts and there was strong evidence before the Court both of P's desire and wishes for a child and for the use of his sperm posthumously if anything untoward happened to him during the treatment.  It will be important for any future application to ensure a proper factual foundation before the Court will exercise its powers under the MCA 2005.

This case marks a step forward in the recognition and protection of an individual's fertility and their family building wishes.  However, it also brings into sharp focus the importance of fertility preservation and maximisation for both men and women in the UK.  

Background

In Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18 the couple were in the early stages of fertility treatment in the hope of having a child. They had been referred and were under the medical care of a fertility clinician when the husband was involved in an accident that caused his catastrophic brain injury. The accident occurred just days before the couple were due to attend a further clinic appointment to progress their treatment.

The husband had discussed with his wife and agreed to the storage and use of his sperm during his life and afterwards. However, his unexpected traumatic brain injury prevented him from providing the requisite written consent to the storage and use of his sperm in fertility treatment. 

Legal difficulties

The case created very real legal difficulties. Under common law, in the absence of the husband's consent (oral or written) to the retrieval of his sperm, its harvesting would constitute assault. As the husband in this case lacked capacity, he was unable to provide that consent.

The HFE Act 1990 also applied in prescriptive terms in this case. Section 4(1) HFE Act 1990 states that:

"No person shall -

(a) store any gametes, or

(b) in the course of providing treatment services for any woman, use -

(i) any sperm, other than partner-donated sperm which has been neither processed nor stored…

except in pursuance of a licence". 

Section 4(1A) HFE Act 1990 states that:

"No person shall procure [make available], test, process or distribute any gametes intended for human application except in pursuance of a licence or a third party agreement".

Consequently, only a licensed fertility clinic could retrieve and store the husband's sperm and that required the effective consent of the husband.

Schedule 3 to the HFE Act 1990 governs consent to storage and use of gametes in the UK. Paragraph 1(1) of Schedule 3 requires such consent to be provided in writing and signed by the person giving consent (although another can sign if that individual has capacity but is unable to sign themselves under para 1(2) due to illness, injury or physical injury).  Paragraph 1(3) of Schedule 3 provides that effective consent must not have been withdrawn.  Paragraph 2(2) of Schedule 3 states that consent to storage of gametes must, save in specified circumstances, record what is to happen to the gametes if the consent provider becomes incapacitated or dies.

Paragraph 3 of Schedule 3 requires the consent to be informed.  Paragraph 3(1) and (2) state:

(1) "Before a person gives consent under this Schedule –

(a) He must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and

(b) He must be provided with such relevant information as is proper.

(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 [dealing with varying and withdrawing consent].

Paragraph 5(1) of Schedule 3 provides that a person's gametes must not be used for the purposes of treatment or non-medical fertility services unless there is effective consent by the individual to their being so used and they are used in accordance with the terms of the consent. Section 5(2) of Schedule 3 prohibits the gametes being received for those purposes unless there is an effective consent by that person to their being so used.

Paragraph 8(1) of Schedule 3 states that an individual's gametes must not be kept in storage unless there is effective consent to their storage and they are stored in accordance with that consent. The provisions in paragraphs 9 and 10 which enable an individual's gametes to be stored without their consent did not apply in this case.

Whilst the Human Fertilisation and Embryology Authority ('HFEA') could grant a special direction permitting export of sperm and modify the provisions of the HFE Act 1990 governing licence conditions and consent for export purposes, it had no power to modify licence provisions for the purposes of storage and use of sperm in the UK prior to any transfer abroad.  Furthermore, no clinician would remove P's gametes in the knowledge that they could not be lawfully stored in the UK before transfer abroad.

The Human Tissue Act is of no assistance because section 53(1) provides that gametes are outside the Human Tissue Authority's regulatory remit.

There was also no case law which directly helped. In the Diane Blood case, her husband's sperm had already been retrieved, whilst he was in a coma after contracting meningitis, as a holding measure in what was recognised at the time to be a legally unexplored situation. The Court of Appeal in R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687 held that the sperm should not have been retrieved and stored on an interim basis in the absence of effective consent by the husband.  It also held that both Mrs Blood's proposed treatment and the continued storage of her husband's sperm was prohibited by the HFE Act 1990 and the HFEA had no power to authorise treatment in the UK.  However, recognising the reality that the sperm had already been retrieved and stored (albeit unlawfully) the HFEA's refusal to authorise the export of her husband's sperm abroad infringed her right to receive medical treatment in another EEA state and the Court allowed the appeal on the basis that the HFEA could make a special direction enabling export of the sperm to another member state.

In L v Human Fertilisation and Embryology Authority and Secretary of State for Health [2008] EWHC 2149 (Fam) it was held a previous interim order for sperm retrieval had been incorrectly made following incorrect arguments about the application of the Human Tissue Act. Charles J stated at paragraph 77 "In my judgment the 1990 Act sets an absolute, clear and bright line which prevents storage for use in the UK, and use in the UK, without effective consent.  This is because there is no power given to the HFEA, or anyone else, to alter or mitigate the force of the provisions relating to the terms of licences relating to the need for such effective consent before gametes (and embryos) can be stored and used". 

Charles J went on to state at paragraph 91: "More generally, in my view the nature of gametes and the purpose of their storage and use (i.e. to produce a child) means that in respect of issues relating to their retrieval, storage and use both (a) the autonomy of the donor, and (b) the potential knock on effects of their use without express and informed consent, are engaged after the death of the provider."

Court of Protection

When it became clear that P had not signed the requisite forms before his injury, the COP represented the only hope of lawfully arranging the retrieval, storage and posthumous use of his sperm.

The COP has jurisdiction over the property, financial affairs and personal welfare of individuals who lack the mental capacity to make decisions themselves. A large proportion of applications dealt with by the COP relate to property and financial matters, along with applications for Lasting Powers of Attorney (LPAs). However, there was no precedent for seeking the assistance of the COP in a posthumous conception context. Notwithstanding this, in a sensitive and groundbreaking legal judgment, the Court stepped in to authorise the retrieval, storage and posthumous use of P's sperm. 

In granting declaratory relief, the Judge determined that it was in the husband's best interests for his sperm to be retrieved, stored and used in fertility treatment because (1) he had had a settled intention to have a child with his wife, (2) he had sought a referral for fertility treatment, (3) he had discussed the issue of posthumous use of his sperm with his wife and had agreed to posthumous use and (4) he and his wife were under the care of a consultant obstetrician and gynaecologist and had undergone and arranged a further appointment for the purposes of undergoing treatment.

The Judge was satisfied that by reason of his traumatic brain injury, the husband lacked capacity to provide his written consent for fertility treatment for the purposes of the HFE Act 1990. She ordered that notwithstanding his lack of capacity, it was lawful (1) for the Head of Reproductive Medicine at the clinic to retrieve his sperm (2) for the sperm to be stored before and after his death upon the signing of the relevant consents by The Official Solicitor and (3) for his sperm and any embryos comprising his sperm to be used after his death.

Critically, the Judge further directed that a named individual (being a relative of P) had authority to sign the relevant consents for storage and use of P's sperm, and any embryos created with his sperm in accordance with paragraph 1(2) of Schedule 3 to the HFE Act 1990, pursuant to section 16(2)(A) of the MCA 2005.

Uniquely in this case, all parties worked together to find a way to save and store P's sperm for posthumous use by the wife in fertility treatment. The application was supported by the husband's medical team, the husband and wife's fertility clinician and The Official Solicitor.  The HFEA formally adopted a position of neutrality at the hearing but their team had been instrumental in the discussions that resulted in the agreed outcome.

The remit of the COP, to protect an individual's health and welfare, meant that it was uniquely placed to assess where P's best interests lay.  The MCA 2005 provided the jurisdiction and authority to substitute P's signature with that of an identified individual.  The COP's enlightened stance and the proactive approach of the HFEA and the parties preserved the husband's sperm for future use in his wife's treatment. In so doing, the Court also provided a ray of hope that P's wife might conceive a much wanted child in future and in doing so fulfil both her and her husband's wishes.

Conclusion

Human fertility has far wider significance than what was at issue in this case. Fertility influences human behaviour, it creates and shapes populations and societies around the world, it drives science and reproductive technology and influences economics and law and policy.  Medical advances will inevitably bring new challenges for society and the law in considering assisted conception and parenthood.

Individual fertility is precious. More work is needed to help people understand and secure ownership over their fertility and future family building arrangements. Decisions about whether to pass on one's biological heritage and preserve the means to do so in life, incapacity and death have long lasting implications for individuals, their spouses, partners and families.

Louisa Ghevaert was part of the wife's legal team in Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18 and Head of Fertility and Surrogacy – Director -Family Law at Vardags.  Michael Mylonas QC was instructed by Vardags on behalf of the wife.

20.8.18