The posthumous use of embryos: a consideration of EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004

This recent case examined the interplay between the formal requirements for consent under the Human Fertilisation and Embryology Act 1990 against Article 8 rights under the European Convention on Human Rights to privacy and a family life.

The background

The husband in this case was happily married to his wife.  They had two children, the younger of which had been conceived through IVF, with one embryo remaining.  Tragically, the wife died unexpectedly with their youngest child.  The husband wished to use the remaining embryo with a surrogate to have a child with a genetic link to himself and his late wife, and in order to provide their eldest daughter with a sibling with the same mother.  Unfortunately, this was not permitted as the permission given by the wife in relation to her eggs and the embryos was deficient.  The husband went to court for a declaration that it was lawful for him to use the embryo in treatment with a surrogate.

The wife’s consent

Of crucial importance in this case was to what the wife actually consented.  Schedule 3 of the Human Fertilisation and Embryology Act 1990 sets out the formal requirements of consent to use an embryo which include that it must be in writing and signed by each person whose gametes were used to bring about creation of the embryo. 

1. Problems with the wife’s consent

Those embarking on IVF using embryos created from their own gametes are provided with pro-forma forms to complete from the Human Fertilisation and Embryology Authority (“HEFA”).  The forms are different for men and for women, with the male form specifically referring to what the man would like to happen in the event of his death or mental incapacity in relation to using the sperm or embryo for surrogacy, and the female form having no mention of this, except a reference to another form.  The inconsistencies in the pro-formas had been raised in a previous case and the HEFA had updated their forms as a result; however, the forms signed in this case were the old version.  Accordingly, the wife had not given written consent to the use of her eggs and embryos with a surrogate in the event of her death or mental incapacity. 

2. The wife’s wishes

The husband set out a number of reasons why he was certain that his wife’s wish was that their jointly created embryo be used posthumously with a surrogate in the event of her death, if she had been given the chance to do so.  They had discussed the use of the embryos in the event of the husband’s death, concluding that the wife would use them.  By implication therefore, the converse was also true.  They both wanted a third child, both being from families with 3 children.  Wider family and friends supported the husband’s position.

Additionally, both husband and wife were devout members of a religion which believed in the sanctity of life, and in particular that every living being has a soul.  They considered that the divine soul entered the embryos at the point of conception.  The husband pointed to this as further evidence that his wife would not want the embryos to perish.

European Convention on Human Rights

The husband argued that preventing him from using the remaining embryo in treatment with a surrogate following his wife’s death was a significant interference with his Article 8 rights under the Convention to privacy and a family life.  It deprived him of the opportunity of being a genetic father to a second child conceived from the jointly created embryo, and it also deprived their older daughter of a sibling from her mother. 

The husband also argued that his Article 9 rights to freedom of religion were being infringed as he was being deprived of being able to honour or fulfil his wife’s religious wishes for the embryo to be used in accordance with her beliefs.

The court’s decision

The court found that the wife would have wanted her husband to be able to use the remaining embryo in treatment with a surrogate.  While she didn’t specifically discuss this or give written consent, this was due to deficits in the pro-forma forms used by HEFA.  She didn’t withdraw her consent, and it was not revoked.  She wanted to have a third child.  The court inferred that had she been given the opportunity to consent in writing she would have, and it is a fundamental principle that the wishes of gamete providers should be paramount.  The court has an implied discretion to accept evidence of consent provided other than in writing where to fail to do so would be in breach of Article 8.  The court therefore allowed the husband to use the embryo with a surrogate. 

The Birketts View

It’s important at the outset of your fertility journey that you fully explore the consequences and implications of each process so that you can ensure that your wishes will be adhered to in every eventuality.  If you have any questions on the issues raised in this article, then do contact a specialist advisor in the Birketts Modern Families Team.