Modern families, medicine and the law: IVF and conception post-death

Advances in medical treatment and modern family life have both lead to the courts in England and Wales and overseas, grappling with new and complex legal issues in lifetime and on death.

China

In 2013, a Chinese couple undergoing IVF treatment died in a road traffic accident, 5 days before they were due to transplant the fertilized embryo into the mother's womb. 

The couple's parents sought custody of the frozen embryos and permission to take them to Laos to enter into a surrogacy arrangement, as surrogacy is illegal in China. After a four-year legal battle, the first of its kind in China, they were successful and welcomed their grandchild into the world in late 2017.  

England and Wales

On 12 July 2018, the Court of Protection was asked to grant an emergency application that it was in Z's best interests to have his sperm extracted and stored, so his wife could continue with the IVF treatment the couple had started together.

The couple were due to attend an appointment on 16 July 2018 to continue their treatment. Tragically, on 5 July 2018, Z was involved in a road traffic accident and suffered a catastrophic brain injury. His medical team undertook testing which confirmed he would not recover any brain function or awareness.

The judge ordered that it was both lawful and in Z's best interests for his sperm to be extracted, stored and used by his wife so she may continue treatment, even after her husband's death.

On the evening of the 12th July following the hearing, the consent forms were signed on Z's behalf and his sperm was extracted. Z sadly died the following day. 

Both cases although desperately tragic, demonstrate the changing landscape of family life and consequently, the changing landscape of decisions of the courts. It is also a stark reminder when commencing fertility treatment, to ensure your wishes concerning a wide range of scenarios are expressly and clearly recorded.