The recent ruling in a case involving posthumous conception

On 30 September 2024, the President of the Family Division handed down judgment in the case of G v Human Fertilisation and Embryology Authority and Anor [2024] EWHC 2453 (Fam). The UK jurisprudence on posthumous conception is understandably limited, particularly where the applicant is the deceased’s parent rather than their spouse.

The details of the case

The applicant, G, was the deceased’s mother. Her daughter, N, died in June 2023 from breast cancer. She was in her early 30s. Before starting treatment, she harvested 20 eggs, which were then frozen. Interestingly, the judgment states that N had a male partner, but presented to the clinic as a single person, and he took no part in the proceedings.

In December 2023, G applied for a declaration that it was lawful for the posthumous storage to continue and for the clinic to undertake fertility treatment using N’s eggs, donor sperm and a surrogate (both the proposed sperm donor and surrogate were known to G). Any child born would be raised by G as her own, with an adoption order to secure legal parentage (G would not have been able to apply as a single person for a Parental Order following a surrogacy arrangement in any event as her gametes were not used). As an alternative, G sought a declaration that it was lawful for N’s eggs to be exported to a clinic in the US for treatment with a surrogate and donor sperm there.

Permission was given for the Human Fertilisation and Embryology Authority (HFEA) and the Secretary of State for Health and Social Care to intervene.

Crucially, no written consent had been provided by N during her lifetime for the posthumous use of her eggs or for surrogacy. G’s position was that N had discussed with G her wish to be a mother, G would need to look after her children, and a surrogate might be needed.

The court had the benefit of a witness statement from G, the clinic’s records and forms, and N’s medical records. No oral evidence was given and there was no challenge by either the HFEA or the Secretary of State to G’s account.

The President said he had no reason to doubt G’s recollection of her conversations with N and proceeded on the basis that what she said was true. He acknowledged that the UK has a statutory scheme which permits posthumous conception, stating “it was therefore legally permissible for N to have given written consent to the clinic, in a form and after a process that was compliant with the HFEA 1990, any regulations and guidance, for her frozen eggs to be used posthumously for the creation of an embryo and for that embryo to be implanted in a surrogate mother, just as her mother, G, now seeks to achieve” (para 21).

This point was accepted by both the HFEA and Secretary of State. What G was seeking was, therefore, lawful if undertaken within the statutory scheme approved by Parliament, i.e. within her lifetime, N had consented to the posthumous use of her eggs with a surrogate.

As with most posthumous conception cases necessitating court applications, the essential element of the deceased’s consent was lacking. The applicant, therefore, had an uphill battle to seek to persuade the court that notwithstanding that lack of written consent, G should be permitted to use her deceased daughter’s eggs to create a posthumous (grand)child using donor sperm and a surrogate.

The President explained the legal context in respect of the regulation of the storage and use of gametes as set out in the HFEA 1990:

• The storage or use of gametes is prohibited except in pursuance of a licence (s4);
• Every licence is subject to a general condition of compliance with Schedule 3, which sets out the framework for giving consent (s12(1)(c));
• Consent must be in writing and must be signed (Schedule 3 para 1(1));
• Consent to the storage of gametes must state what is to be done with the gametes if the person who gave the consent dies or lacks capacity to vary or withdraw consent (Schedule 3 para 2(2)(b));
• Before giving consent, a person must be given a suitable opportunity to receive proper counselling and to be provided with such relevant information as is proper (Schedule 3 para 3(1) (a) and (b));
• A person’s gametes must not be used for treatment purposes unless there is effective consent (Schedule 3 para 5(1));
• A person’s gametes must not be used to create an embryo in vitro unless there is effective consent (Schedule 3 para 6(1)); and
• Effective consent means consent as per Schedule 3 which has not been withdrawn (Schedule 3 para 1(3)(a)).

It was important for the judge to examine the various forms that N did sign. In December 2022, she gave consent to ovarian stimulation, egg collection, cryopreservation of her eggs, the disclosure of identifying information and egg storage, but she did not sign additional forms consenting to the posthumous use of her eggs or their use in surrogacy. It was accepted by all parties that N had frozen her eggs with the intention of carrying a child herself, conceived from the frozen eggs when she recovered.

As it was not possible for G to rely on the statutory scheme, she relied upon the Human Rights Act 1998 (HRA 98) and the European Convention on Human Rights (ECHR) to argue why the court should sanction G’s application for a declaration.

It was accepted that N had an Article 8 right to family and private life under the ECHR and that those rights did not endure beyond her death. G argued that as she and N were engaged in a ‘joint parenting project’ before her death, G also had Article 8 rights which continued to be engaged beyond N’s death. As such, G was inviting the court to read the HFEA legislation so as to give effect to G’s continuing Article 8 rights. This would require the court to accept that N’s written consent was not needed and/or the court could read down an interpretation of the legislation to either permit the court to be satisfied that the consent requirements were met or could be dispensed with.

G argued that because of her joint parental project with N, the facts were sufficient to put G in the position of N in asking for N’s eggs to be used to create a child and so Article 8 rights were engaged by the joint endeavour. The use of the term ‘parental project’, G argued, had been used by Gwynneth Knowles J in Y v A NHS Healthcare Trust, the HFEA and Z [2018] EWCOP 18 and by Theis J in Jennings v HFEA [2022] EWHC 1619 (Fam). The President, however, disagreed, stating that the phrase did not appear in either judgment, although accepted that it had been used in some ECHR case law.

In relying on her position, G’s leading counsel cited several authorities:

• R(M) v HFEA [2016] EWCA Civ 611, which was most similar in relation to the facts, but not relied on in relation to outcome;
• Re Warren [2015] Fam 1, where the legislation was read down to allow consent to further storage of sperm to be inferred;
• Y v A NHS Healthcare Trust [2018] EWCOP 18, a case before the Court of Protection decided under the Mental Capacity Act 2005;
• Jennings v HFEA [2022] EWHC 1619 (Fam), the deceased had not given written consent to the posthumous use of her embryo with a surrogate, but Theis J was able to infer that she would have consented had she been given the opportunity to do so, and she read down the relevant provisions in Schedule 3 to dispense with the need for written and signed consent; and
• SB v University of Aberdeen [2020] CISH 62, a clause in the deceased’s will providing for his executors to ensure that his sperm was available to his widow was sufficient evidence of consent in the absence of explicit consent.

The position of the HFEA and Secretary of State

Both the HFEA and the Secretary of State were opposed to the application. Counsel for the HFEA quoted Lord Bingham in the case of R (Quintavelle) v Secretary of State for Health [2003] UKHL 13 that following the statutory scheme set out in the 1990 Act: “No activity within this field was left unregulated. There was to be no free for all.”

Informed consent remained the cornerstone of the Act and this did not change when the Act was updated in 2008. Cases cited by the intervenors included:

• U v Centre for Reproductive Medicine [2002] EWCA Civ 565, the Court of Appeal upheld the decision of Butler-Sloss P in refusing to permit a widow’s use of her deceased husband’s stored sperm; and
• Evans v UK [2007] 1 FLR 1990, the European Court of Human Rights expressly endorsed the strictness of the statutory scheme relating to consent as it promoted legal certainty and that this was not incompatible with the ECHR.

The HFEA also argued that even if the court could look outside the statutory scheme, in this case there was insufficient evidence to establish that N would have given her consent as proposed by G. Many of the conversations G said she had with N were towards the end of her life and the evidence in the medical records was that she did not have capacity by then. Even in the course of her interactions with her treating team when she had capacity, there was no record of N referring to the posthumous use of her gametes.

The Secretary of State concentrated its arguments in respect of the applicant’s human rights application. For G to succeed “(a) it must be established that G’s rights under the ECHR, Art 8 are engaged, that (b) the requirements of HFEA 1990, Sch 3 constitute a disproportionate interference with those rights and that (c) the provisions of Sch 3 can be read down so as to be dispensed with”. It was argued that G could not overcome any of these hurdles.

The Secretary of State relied on the case of Lanzmann v France (23038/19), where the ECtHR refused a mother’s claim for the release of her son’s sperm to enable her to commission IVF and surrogacy in Israel to conceive a posthumous grandchild. The Article 8 rights of her son had died with him and were not transferable to her.

Any argument for a ‘joint parenting project’ had been where a couple had been engaged in fertility treatment together and not, as in this case, between a mother and daughter. No reported decision had previously established such a project and the evidence did not support it. Counsel for the Secretary of State argued that N’s conversations with G fell short of establishing a joint parenting plan.

In an alternative argument, Counsel for the Secretary of State also argued that the 1990 Act was a ‘general measure’ applying to all in like manner, regardless of individual circumstances. Such measures may result in ‘individual hard cases’, but the proper approach is to consider the generality of the rule. Counsel relied upon the ECtHR Grand Chamber case of Animal Defenders International v UK (48876/08) [judgment 22 April 2013]. In that case, there was an extensive list of previous occasions in which it had been held that general measures were consistent with the Convention. The case of Evans v UK, involving the destruction of frozen embryos, was cited in that list.

Leading counsel for G argued that the line of authority in relation to general measures had been developed further in the case of Bank Mellat v HM Treasure (No.2) [2013] UKSC 39, such that in an exceptional case, the court could step in to protect the disproportionate infringement of an individual's rights.

The ruling

The President held that it was not possible for the court to conclude from the evidence that N had contemplated the posthumous use of her eggs in the manner proposed by G or even that N had come to a settled conclusion that that was what she wished to occur and that she consented to the use of her eggs in that manner following her death.

As such, the second element, namely that N would have signed the forms giving her consent had she been given the opportunity, did not strictly arise. The President, however, said that if the evidence had established that N’s wishes were what G asserted, it did not follow that she would have signed the forms. If N had been offered counselling and received the proper information before signing the forms, she may have contemplated other options.

G’s application was therefore dismissed on the facts. The President did, however, express his view on the legal submissions if, contrary to his findings, G’s case on the facts was established. He rejected the submission that there was a joint parental project, stating “Rights under Art 8 attach to individuals and not to concepts or joint endeavours”. N’s Article 8 rights died with her and G had no Article 8 rights of her own.

He also rejected the submission that the court should intervene in an exceptional case like this to remedy the unfairness under Article 8. Any claim based on unfairness would not survive N’s death and there is no general jurisdiction for the court to intervene solely on the basis that a case may be seen to be ‘exceptional’.

The President expressed his regret at being the cause of further sadness to G, but the application failed on both the facts and the law and was therefore refused.