And a grandbaby makes three – Do families have a right to use a deceased family member’s frozen eggs or sperm for reproduction?
Insight
The laws surrounding frozen embryos, eggs, sperm, and surrogacy are rapidly evolving worldwide. In two recent cases, one in England and one in India, the parents of deceased young adults wished to have grandchildren using their deceased children's gametes and raise them. The vastly different outcomes in the two cases, hinging on evidence of the deceased’s consent to posthumous treatment, demonstrate how important it is to take specialist legal advice in all relevant jurisdictions when considering alternative pathways to parenthood.
England: a “joint parenting project”?
The recent English case of G v Fertilisation & Embryology Authority & Anor arose in tragic circumstances. A young woman in her thirties died from breast cancer in 2023. After receiving her diagnosis in 2022, but before starting chemotherapy, she arranged for her eggs to be harvested and frozen by a clinic.
After the young woman died, her mother sought a declaration that the clinic could continue storing the frozen eggs and undertake fertility treatment using the frozen eggs, donor sperm, and a surrogate, in the hope that a child would be born. The woman’s mother, “G”, wanted to raise the child. Alternatively, G wished for the frozen eggs to be exported to a clinic in America for use in similar fertility treatment there.
G’s evidence was that it was her daughter’s last wish that a child should be born by donor conception and surrogacy and brought up by the grandmother. However, the existing law (The Human Fertilisation and Embryology Act 1990) requires patients to provide written consent for posthumous use of eggs, in a certain form, which the daughter had not completed.
G argued that, although the strict rules in relation to consent for posthumous treatment had not been complied with, the court should allow her proposed treatment on human rights grounds. In particular, G argued that she and her daughter had been engaged together in a “joint parenting project” and that G now stood in her daughter’s place asking for her eggs to be used to create a child.
G also argued that the daughter did give her consent for posthumous use of her eggs to the grandmother directly and she wished for her mother to take their joint parenting project forward if she were to die. She also said that the daughter would have signed the required forms had she been given the opportunity and, because of the unfairness of the situation, the court should provide a remedy.
Lack of informed consent
The HFEA (the Human Fertilisation and Embryology Authority) and the Secretary of State for Health opposed G’s application. They argued there is no discretion within the statutory scheme – consent must be informed, in writing and signed. Alternatively, they argued that even if the court could look outside the statutory scheme, there was insufficient evidence that the daughter had given informed consent. The only evidence was G’s recollection of conversations between her and her daughter.
In the end, the judge found it was not possible to conclude that the daughter had fully contemplated the proposed steps, let alone come to a settled conclusion that this was what she wanted. There was simply not enough evidence to prove that she consented to the use of her frozen eggs in this manner following her death. For example, she had not given consideration to who the surrogate would be, what involvement the surrogate would have in the child’s life, or who the genetic father would be in circumstances where she was in a relationship with a male partner. The judge also stressed the importance of her informed consent. Even if the daughter had discussed the plan with her mother, the court could not be certain that, after considering the plan with professionals and contemplating all available options, she would have followed through with that plan.
India: the benefit of evidenced consent
By contrast, the Delhi High Court recently ruled that a couple in India did have the right to use their deceased son’s frozen sperm in fertility treatment and to raise a grandchild born through surrogacy.
The facts of this case are remarkably similar to those of G v Fertilisation & Embryology Authority & Anor. Here, the Indian couple’s son was diagnosed with blood cancer (Non-Hodgkin’s Lymphoma) in June 2020. Before starting chemotherapy, he agreed to freeze and store his semen as the treatment could affect his fertility. The son sadly died in September 2020 and when his parents requested access to his frozen sperm for fertility treatment their request was denied. They therefore brought their case to the Delhi High Court, on the basis that they would raise the child born using their son’s sperm. Their daughters also gave an undertaking that were their parents to die they would be responsible for the child.
The judge in this case ruled that the couple were entitled to use their son’s sperm and that there was “no prohibition against posthumous reproduction” if the consent of the deceased was established. Crucially, the son here signed a form at the hospital wherein he clearly specified that the purpose of storing his semen was for IVF treatment. Both his and his father’s mobile numbers were mentioned on the form which, as decided by the court, showed the son’s intent to preserve his sample for posthumous procreation and reflected his will. The fact that the father had been paying the lab preserving the sample added weight to the argument that the son had intended his parents to be the recipients of his gametes in the event of his death. This was sufficient evidence of consent under Indian law.
The Indian judge explained her decision by saying the son “was not married and did not have any partner.” He intended for the sample to be used in order to bear a child. When he passed away, the parents being the heirs of the deceased, and semen samples being genetic material and constituting property, the parents are entitled for release of the same.”
Takeaway lesson
These contrasting decisions emphasise that there is no consistency internationally on these issues. Nor is there yet any global framework regulating surrogacy, or the use of frozen embryos, eggs or sperm. It is therefore critical that anyone looking to use assisted reproductive technologies takes specialist advice before doing so, both from their medical and legal advisors, in any and all jurisdictions where they have connections or may hope to live.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2024