Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18

We represented the wife in a landmark legal case, securing a unique ruling from The Court of Protection to extract and store sperm from her dying husband for posthumous use in fertility treatment.

In Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18 (02 August 2018), husband had suffered catastrophic brain and internal injuries in a road accident while the couple was in the early stages of fertility treatment. Medical experts determined he would never regain consciousness or any functional capacity. The clinical team recommended brainstem testing, and if no brain activity was detected, he would be pronounced dead and removed from life support.

There was uncertainty about whether the husband had provided written consent for the storage and use of his sperm in fertility treatment, as required by the Human Fertilisation and Embryology Act 1990 (HFEA 1990). Consequently, his sperm could not be harvested and stored for use at a licensed UK fertility clinic.

The wife sought a declaration that, despite her husband's incapacity and inability to consent, it was lawful and in his best interests to retrieve and store his sperm before his death to continue their agreed IVF treatment. The court had to determine whether it was lawful to collect and store the husband's sperm pre-mortem so the wife could proceed with the treatment. Under common law, extracting the husband's sperm without his consent would constitute assault.

In a bold and enlightened decision, the court granted the application using provisions from the Mental Capacity Act 2005. The court ruled that the decisions made on the husband's behalf were in his best interests, even though his death was imminent. The order declared it lawful for a doctor to retrieve his gametes and for those gametes to be stored both before and after his death, provided the relevant consents for storage and use were signed. It was also deemed lawful for his gametes and any embryos formed from them to be used posthumously.

Mrs Justice Knowles emphasised that the decision was fact specific and observed that if other similar cases were to arise, that the court should consider from the outset the execution of consents to both storage and use of gametes, rather than storage alone to avoid further proceedings and delay.