Parenthood After Passing: Legal Lessons from EF v HFEA

Parenthood After Passing: Legal Lessons from EF v HFEA – Can frozen embryos be used after death?

It is estimated that one in 32 UK births in 2023 were via IVF – approximately one child in every classroom. In an age where IVF, and egg freezing is becoming more common it is sadly necessary to consider what happens to those frozen embryos and gametes after the passing of one parent.

Freezing Eggs, Sperm and Embryos

It is possible to either freeze “gametes” ( i.e. eggs or sperm) or embryos. You may choose to freeze gametes for several reasons, such as:

• Choosing to “keep your options open”. This may be the case if you haven’t yet met a partner you desire to have children with and you are conscious that fertility decreases with age;
• Being faced with medical reasons – for example, an impending cancer treatment which will affect fertility.

You might as a couple choose to freeze embryos – i.e. fertilised eggs, either for IVF purposes or perhaps to potentially implant into a surrogate.

Sadly, on occasion, the question arises about what happens to the gametes or embryos after the death of one of the potential parents.

EF v HFEA

In the case of EF v Human Fertilisation and Embryology Authority [2024] EWC 3004 (Fam), the court addressed the question of whether a husband had the right to use an embryo that was created with his sperm and his late wife’s eggs to have a child via surrogacy after his wife’s death.

In this case, the couple had one child already prior to two healthy embryos being created. One embryo was transferred to the mother in 2017, following which a healthy baby was born. Sadly, the mother and baby died unexpectedly, and then the father sought permission to use the second healthy embryo in order to have a child via a surrogate.

Consent to use frozen embryos

The “frozen” embryos or gametes are usually stored at the clinic treating the potential parents. At the start of treatment, the potential parents are asked to sign consent forms. In the case of EF v HFEA, some of the forms were pro forma HFEA forms, and some were specific to the clinic.

Although one of these forms (“the MT Form”) recorded the husband’s consent to either sperm or embryos created with his sperm after he dies or becomes mentally capacitated, there was no equivalent provision in the “WT Form” – i.e. the consent form for the wife.

The couple therefore filled out the forms they were provided with, and the wife did not provide any explicit consent for her embryos to be used after her death.

Wishes of the deceased wife

The husband set out evidence of why he was certain his wife would have consented to the posthumous use of the embryo to be implanted into a surrogate. He argued that it was lack of opportunity to consent rather than an intentional lack of consent. His evidence included the religious beliefs and family circumstances of himself and his late wife. It also included the discussions they had had about the importance of them having a baby to provide their surviving child with a sibling. He expressed their discussed wishes to replicate their own experiences of each growing up with two siblings. The husband also gave evidence that, given that he had given his consent for posthumous use of his sperm, this showed their intention to consider posthumous use of the wife’s eggs.

The wife’s father also gave evidence in support of the application, as did her wider family and friends.

The law surrounding posthumous consent

The donation, storage and use of gametes and embryos is regulated by the Human Fertilisation and Embryology Act 1990, and the Code of Practice issued by the FLEA pursuant to section 25 of the HFEA 1990.

Those laws and codes of practice set out the procedure for giving consent to posthumous use of gametes and embryos. The HFEA argued that pursuant to those instruments:

• written consent was required from the original donor; and
• the court does not have discretion to grant permission for the husband to use the embryo without that signed, written consent from his late wife.

Indeed, in previous cases, the court has not granted permission for frozen gametes or embryos to be used where that specific consent had not been provided.

The outcome

In this case, the Judge considered carefully the evidence set out by the husband that it had been his wife’s intent to provide consent but she had not been given the opportunity to do so.

Mrs Justice Theis DBE took into account that the wife had named her husband as the treatment partner and that she had never withdrawn consent. The specific evidence from the father and their wider community of friends and family about the wife’s wishes and beliefs also played a large part.

The Judge concluded that she was able to infer that the wife would have consented should she have the opportunity to do so and therefore granted permission.

The Judge was clear that any cases similar to this must each be decided on their own merits and evidence about the deceased’s wishes. She expressed that this approach is not inconsistent with the statutory instruments set out. She considered that an implied discretion of the court could be “read into” the legislation given that there was nothing in the legislative history to suggest that such a situation was ever considered by Parliament.

What does this mean?

This case does mark a sea change in approach to posthumous consent.

Previously the courts have, on the whole, relied on explicit consent. Now the court has decided that there is an element of discretion based on the evidence of what the posthumous donor would have wanted. However, in order to avoid litigation, donors need to take the time to consider the forms they sign within clinic. It may seem to be a “tick box exercise” but if the specific circumstance a donor wishes to protect against is not mentioned, the best thing a donor can do is to give those specific instructions at the time.