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

However, a recent ground breaking decision by the Court of Protection has 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 was unable to 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 it was the man’s intention 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 its specific facts where there was very 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:

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

At Myerson we provide specialist legal advice relating to 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 on 0161 941 4000 or email us at

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