If you are considering fertility treatment to start a family, you should get legal advice regarding the consent required for treatment before treatment starts. 

Fertility treatment and the law 

The law surrounding fertility treatment is complex, but we will try and simplify the main principles here. 

The woman who gives birth to the child is the legal mother, whether or not she has used a donor egg to get pregnant. The legal father is the mother’s husband or partner whose sperm is used with the donor egg.

If donor sperm is used, the mother’s husband is still the legal father; or if the mother is unmarried, the mother’s partner is the legal father if:

  • The fertility treatment takes place at a licenced UK clinic.
  • The man in question is alive at the time of the treatment.
  • Written signed notices are given to the clinic by the mother and father, stating that they both wish for the man to be treated as the father.

It is therefore crucial that all fertility treatment takes place at a licenced fertility clinic in the UK and that the correct notices are given to the clinic, also known as parental consent. 

It is a legal requirement under the Human Fertilisation and Embryology Act 1990 (the 1990 Act) that an individual provides written consent before their gametes can be used in fertility treatment.  

Consent to Fertility Treatment 

What happens when someone lacks capacity? 

A groundbreaking decision by the Court of Protection allowed another person to sign the consent form for fertility treatment on behalf of a man who lacked capacity following a catastrophic brain injury (Y v A Healthcare NHS Trust and others [2018] EWCOP 18). The power was exercised under section 16(1)(a) of the Mental Capacity Act 2005. 

The couple had been in the early stages of fertility treatment when the husband was involved in a car accident, which resulted in a catastrophic brain injury, just days before they were due to attend a further appointment at the fertility clinic. 

The husband and wife had discussed that the husband’s sperm should be stored and used during his life and afterwards, and the husband had agreed with his wife that this was what he wanted. However, his brain injury meant he could not provide the required written consent. 

The Court of Protection decision honoured the wishes of the man and his wife to have children. There was strong evidence that the man intended to have children and that his sperm should be used should he die during fertility treatment. 

The Judge was careful to caution that this case was decided on specific facts where there was strong evidence of the individual’s intention. 

The Judge found that it was in the husband’s best interests for his sperm to be retrieved, stored and used in fertility treatment because: 

  • He had intended to have a child with his wife; 
  • He had sought a referral for fertility treatment; 
  • He had discussed the issue of the use of his sperm after death with his wife and had agreed to this; and 
  • The husband and wife were under the care of doctors who had arranged a further appointment for the purpose of undergoing fertility treatment. 

Here to help

At Myerson, we provide specialist legal advice on fertility law, assisted reproduction and surrogacy. If you require advice about any of the issues in this article or any other element of family law, please contact our Family Law Solicitors below.

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