Posthumous conception: court refuses gamete collection on human rights grounds

Last August, we reported on a landmark decision in which the Court of Protection (Court) approved the use of frozen embryos after the woman’s death. Illustrating that this will continue to be a difficult area, the Court of Protection has refused an application by a dying man’s parents to store his sperm to enable the future conception of his child after his death.

In X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, the Court held that there was insufficient evidence that allowing the application would have been in the man’s best interests.

The 22-year old man (X), had been fit and healthy before he suddenly collapsed whilst playing sport. He was unconscious in intensive care at the time of the urgent application and was very sadly expected to be formally declared brain dead the following day.

The applicants were X’s parents. They sought a declaration that a doctor could lawfully retrieve and store his sperm, and that his father could sign the relevant consents for the purposes of the Human Fertilisation and Embryology Act 1990.

Because X was still living, but lacked capacity, the application required the judge to be satisfied that the declaration was in X’s best interests in accordance with the provisions of the Mental Capacity Act 2005.

A weighing of “best interests” in this context involves considering a variety of factors, including the person’s wishes, values, and beliefs, and consulting with anyone interested in their welfare.

X’s father gave evidence that his son had wanted children of his own, that he had talked about what type of father he would be and had kept his old toys and sports gear to give to his child one day. He stated that he and his wife would raise any child conceived, and X’s girlfriend had expressed a desire to carry the child. There was no evidence from X’s girlfriend herself.

When considering whether it would be in X’s best interests to make the declaration, Mr Justice Poole took those views into account, but also considered the following points.

• X’s Article 8 ECHR right to a private life was engaged, both because the process of collecting sperm from an unconscious individual was an invasion of privacy, and because the sperm might eventually be used to lead to the conception and birth of a child. To be lawful, an interference with that right must be necessary and proportionate to achieve a legitimate aim.
• X’s father’s evidence did not demonstrate that the declaration would be in accordance with X’s wishes, values, or beliefs. There was a difference between having a heartfelt desire to be a living father, and a wish to have sperm collected and stored when unconscious to be used after death. There was no evidence that X would have wished for the latter, or that he would have consented to the procedure.

In dismissing the application, the judge held that the evidence was not sufficient to show that granting the application was in X’s best interests, or that the resulting interference with his Article 8 rights would be necessary and proportionate.

Although there have been various recent cases in which the Court has allowed the posthumous use of gametes, this case is a reminder that there are different considerations when the application relates to an incapacitous individual, and that the Court will only grant an application where there is clear evidence on which it can be satisfied the particular procedure in question, with its implications, is something the individual would have wanted.