Caselaw update: posthumous embryo use

In her article “Do families have a right to use a deceased family member’s frozen eggs or sperm for reproduction?”, Amy Radnor explored recent developments in case law addressing the posthumous use of gametes to enable the parents of deceased young adults to have grandchildren.

In a similar vein, the recent case of EF v. Human Fertilisation and Embryology Authority [2024] EWHC 3004 (Fam) addressed the question of whether a husband had the right to use an embryo created using his sperm and his late wife’s eggs to have a child via surrogacy after his wife’s death. Weighing in the balance were issues around religion, human rights, and consent.

The husband and wife were both active members of a religion that held as a core belief the sanctity of life and that the divine soul enters embryos at the point of conception. Their eldest daughter was born in 2009, but they were then unable to conceive a second child naturally and so underwent fertility treatment in 2017. The treatment was successful, and two embryos were created. One embryo was transferred to the wife and one remained stored at the clinic. Shortly after the wife gave birth to their second child (using the first embryo), she and her young baby tragically died unexpectedly.

After his wife’s death, the husband applied to the court for a declaration that it was lawful for him to use the second embryo in treatment with a surrogate. The HFEA (the Human Fertilisation and Embryology Authority) opposed the application. The wife had not consented in writing to the use of the embryo after her death because the forms the couple completed did not include this question. There was, therefore, no signed written consent.

The HFEA argued that there was no discretion in respect of the requirement for signed written consent and it was unlawful for the husband to use the embryo with a surrogate in the absence of signed, written consent from his late wife for that use.

After considering all of the issues at play, the judge, Theis J, determined that although the wife did not directly discuss what would happen to the second embryo in the event of her death, she consented in the forms she signed to the use of her eggs to create embryos for use in treatment. In addition, the wife named her husband as her treatment partner and the signed forms provided clear evidence of her written consent to the use of the embryo in treatment provided to them together. The wife did not withdraw that consent, and the evidence from the husband, taken together with the wider evidence from the wife’s family and friends, fully supported the conclusion that the wife wanted to use their remaining embryo to have a third child.

The judge concluded that the appropriate inference to draw on the evidence was that the wife consented to the husband being able to use the second embryo in treatment with a surrogate in the event of her death and she would have recorded this in writing had she been given the opportunity to do so.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2025