The best way for men to ensure that their gametes are available to their wives or partners for use in fertility treatment in the event of their death, is to store them at an HFEA licensed clinic during their lifetime and to provide written consent to storage and posthumous use.
There is sometimes a mistaken view that family members can give consent on behalf of the gamete provider when he cannot do so himself, and that the law has changed to allow harvesting and use in the absence of consent. This is not the case and the HFEA has not changed its stance.
The current legal position can be summarised as follows:
- gametes should not be harvested if the gamete provider has not given fully informed, written consent to the storage and posthumous use of his gametes (gametes are different from organs i.e. wives, partners and family members can give consent to organ donation on behalf of someone who has not consented but they cannot give consent to the harvesting, storage and posthumous use of gametes on behalf of someone who has not given consent);
- storage of gametes without effective written consent from the gamete provider is a breach of licence conditions and a criminal offence;
- if the gamete provider did not consent to posthumous use, treatment using his gametes will not be lawful in the UK and the registrar will not be able to register him as the father of any child(ren) that may be born.
Increasingly however, clinics are faced with requests from the wives or partners of men who are unconscious and usually on life support, to harvest and store their partner’s gametes before treatment is withdrawn, so that they can have a child after their partner’s death. This article serves to highlight a recent case and how the Court responded in the circumstances.
The full judgment is available to read (https://www.bailii.org/ew/cases/EWCOP/2018/18.html) but in summary, a man was seriously injured in a motorcycle accident. He was on life-support and treatment was to be withdrawn imminently. The couple had recently had an initial consultation at a fertility clinic with a view to commencing treatment at the clinic in the coming weeks. In the absence of the necessary consent forms, and when it became clear that the man was not going to survive, the man’s wife approached the Court of Protection for an order that would allow the PR to harvest her husband’s gametes and store them for future treatment to take place after her husband’s death.
The court declared that on the basis of the fact-specific evidence presented to it, in the particular circumstances of this couple, and notwithstanding the fact that the man lacked capacity to provide written consent because of the traumatic brain injury that he had sustained, the requirements of Schedule 3 of the 1990 Act in relation to consent had been satisfied.
The Court made an order pursuant to section 16 of the Mental Capacity Act 1998 which allows the Court to appoint a person to make decisions on behalf of someone who lacks capacity. The order allowed for a named relative to complete the necessary consent forms on behalf of the gamete provider in accordance with paragraph 1(2) of Schedule 3 of the 1990 Act. The Court made it clear that such consent forms could only be executed before the man died.
Before the court could make any order, it considered the available evidence, and reached a conclusion on two crucial aspects:
- the harvesting of the gametes, with a view to those being stored and later used in treating his surviving partner, was in the man’s best interests; and
- the gamete provider would have consented were he alive.
To assist the Court in an assessment of what was in the man’s best interests, the legal team acting for his wife put forward a range of evidence including evidence as to his wishes, and crucially, the Official Solicitor (https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee/about#contact-information) was appointed by the Court to act for the man and represent his interests at the Court Hearing.
In reaching a view as to the man’s wishes were he alive, the Court took into account what the man would choose to do if he knew that he was seriously injured, was being kept alive artificially and was on the point of life sustaining treatment being withdrawn resulting in his death.
The Court stated that the decision was fact specific. Accordingly, it should be recognised that a Court might not make the same decision in relation to a case without evidence of such exceptional circumstances. It is relevant to note that the following factual findings were made by the Court:
- the couple had a settled intention to have a sibling for their existing child;
- they had been unable to conceive a second child naturally and, as a result, had sought referral for fertility treatment;
- they were under the care of a consultant obstetrician and gynaecologist in order to receive IVF treatment and had an appointment 11 days after the husband's tragic accident to progress the treatment; and
- they had discussed the posthumous use of his gametes and the husband had agreed to posthumous use.
What should you do if asked to harvest gametes from a man who has not given fully informed, written consent, lacks capacity to do so and will not regain capacity:
- Contact your HFEA inspector who will provide you with a suite of material setting out the law and the HFEA’s interpretation of the law;
- Inform the man’s wife, partner and family of the law i.e. the need for fully informed, written consent without which, storage and use would not be lawful in the UK, and suggest that they consider taking independent legal advice should they wish to pursue their request;
- Contact your lawyers and provide them with all relevant information including the suite of material that your inspector has provided;
- Keep the HFEA informed of your actions;
- In the event that the clinic and or the family decide to seek a court order, inform the HFEA and the Official Solicitor at the earliest opportunity so that both can attend any court hearing;
- In event that the HFEA is unable to attend any hearing, place a copy of the suite of material that the HFEA has provided to you before the court.
Publication date: 9 April 2026