Recent media coverage has highlighted the story of former professional footballer Joe Thompson's widow, Chantelle Thompson, who is expecting a baby boy through IVF treatment following her husband's death.
Her story has brought posthumous conception into the public spotlight and prompted questions about how the law regulates the use of stored embryos, sperm and eggs after a person's death.
Our Family Lawyers explore the legal framework surrounding posthumous conception in the UK, including the importance of consent, the role of the Human Fertilisation and Embryology Authority (HFEA), and the key legal considerations for intended parents.
Nichola Bright Joins BBC Morning Live to Discuss Posthumous Conception
What is Posthumous Conception?
Posthumous conception refers to the intentional process of conceiving a child after one genetic parent has passed away.
Posthumous conception can involve using cryopreserved gametes or retrieving sperm from a deceased person shortly after death, for use in assisted treatments like IVF or artificial insemination.
It is a complex area that raises sensitive emotional, ethical and legal questions, particularly around consent, parenthood and the wishes of the deceased.
Advances in fertility treatment have made posthumous conception increasingly relevant as modern reproductive technology now allows sperm, eggs and embryos to be preserved for long periods of time, meaning they can be successfully used and stored after a person’s death.
Techniques such as cryopreservation, IVF and posthumous sperm retrieval have expanded what is medically possible, meaning situations that were once rare or impossible now arise more often in practice. As a result, the law and society are being asked more frequently to address difficult questions about consent, parenthood, inheritance and the welfare of any child conceived in this way.
What does Posthumous Conception involve?
Posthumous conception can generally fall into three main categories:
- Embryos created before death: This is where a fertilised embryo is created using both partners’ genetic material prior to one’s death, which is then later implanted into the surviving partner or a surrogate.
- Post-mortem fertilisation: This is where eggs or sperm which have been cryopreserved whilst the deceased was alive are used to create an embryo after their death.
- Sperm revival: This is where sperm is surgically extracted from a deceased partner shortly after their death (usually within 24-36 hours) and used to fertilise their surviving partner’s egg.
It is important to note that there is a difference between posthumous conception and posthumous birth. The core difference lies in when the child is conceived. A posthumous birth occurs when a child is conceived whilst both parents are alive, but the biological parent dies before the child is born. Posthumous conception refers to a child being conceived after a parent has died.
Is Posthumous Conception legal in the UK?
Yes, Posthumous Conception is legal in the UK.
However, it is strictly regulated by the Human Fertilisation and Embryology Authority (‘HFEA’).
The HFEA are the UK’s independent government fertility regulator that oversees fertility treatment and scientific research involving human embryos.
Consent in Posthumous Conception
The HFEA requires written, signed consent from the donor for the storage and use of their genetic material prior to their death.
Schedule 3, Paragraph 1 of the Human Fertilisation and Embryology Act 1990 confirms that consent must be:
- In writing and signed;
- With informed choice (i.e., the donor must have received the relevant information about the implications of Posthumous Conception and have been offered counselling before signing);
- With the right of withdrawal (i.e., the donor must maintain the right to alter or withdraw their consent at any time prior to insemination or embryo transfer; and
- For a specific purpose, i.e., for one of the following reasons:
- Use in providing treatment to the person providing their consent, or that person and another specified person together;
- Use in providing treatment to persons not including the person giving consent;
- Use for the purpose of training persons in embryo biopsy, embryo storage and other embryological issues; or
- Use for any research project.
Effective consent to Posthumous Conception therefore requires explicit, informed and documented written consent from the donor before their death.
Without this, the law mandates that stored genetic material cannot be used and must be destroyed.
An individual can document their consent in writing by completing and signing the specific HFEA consent forms at a UK fertility clinic.
What happens when consent has not been given or the donor lacks mental capacity?
No Consent Given
In the recent case of EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 the applicant and his wife had undergone fertility treatment in 2017 at a licenced clinic and an embryo remained stored at the clinic.
Unfortunately, the wife died unexpectedly during childbirth and had not signed the necessary consent forms.
Initially, the HFEA refused the applicant permission to use the retained embryo with a surrogate.
The applicant then sought a declaration that it would be lawful for him to do so, absent consent, based on the argument that the HFEA’s refusal was an intrusion of his Article 8 rights.
Both the applicant and his wife were members of a religion whose core belief was the sanctity of life.
A priest from their religion filed a statement describing the couple’s inherent beliefs and faith and how the HFEA’s refusal was in direct contravention of this.
In this case, the court was satisfied that the appropriate inference could be drawn that, had the applicant’s wife had the opportunity to give her consent in writing, she would have done so.
It was therefore ruled that it was lawful for the applicant to use an embryo created using his sperm and his late wife’s eggs in treatment via a surrogate mother, notwithstanding the fact that his late wife had not provided a signed, written agreement for this use.
Lack of Mental Capacity for Consent
In the case of Y v A Healthcare NHS Trust [2018] EWCOP 18, the applicant was seeking a declaration that it was lawful to retrieve and store her husband’s sperm prior to his death, despite his incapacity and inability to consent.
Here, the applicant’s husband had been involved in a serious road traffic incident which left him with a catastrophic brain injury.
The court, using provisions from the Mental Capacity Act 2005, allowed this application and decided that it was lawful for a doctor to retrieve his gametes to be stored both before and after his death.
In the case of X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, however, an urgent application was made by the parents of a son who was dying following a catastrophic stroke.
His parents sought a declaration that it would be lawful to retrieve his gametes and store them.
The HFEA opposed this application on the basis that consent was central to regulation.
Mr Justice Poole reviewed the Mental Capacity Act 2005 and the HFEA 1990 and noted that none of the requirements for consent could be met in this case.
Mr Justice Poole differentiated this from the case of Y v A Healthcare NHS Trust [2018] EWCOP 18, as, in this case, the couple had been trying to conceive prior to the donor’s passing.
Mr Justice Poole stated that the application could not proceed as there was no evidence that the individual had wished for his sperm to be collected and stored, and so he could not accept that this should be a default position.
Mr Justice Poole stated that this would have led to an interference with the individual's Article 8 rights.
Legal and Practical Considerations for Intended Parents
From a legal perspective, the most important issue will be consent and without valid consent, it is unlikely that treatment can lawfully proceed.
Intended parents must also consider legal parenthood.
This is because a surviving partner or co-parent may not automatically be recognised as the child’s legal parent in every situation, particularly where consent forms are incomplete or treatment arrangements are unique.
This can have knock-on consequences for birth registration, parental responsibility and potentially inheritance claims involving the child.
Intended parents may face urgent medical decisions, strict clinical procedures, emotional strain and the need for specialist advice at a very difficult time.
Intended parents may need to act quickly whilst navigating counselling requirements, storage arrangements, funding and the possibility of court proceedings, should consent be disputed or unclear.
There may also be considerations as to surrogacy and future care arrangements of the child, which need to be considered fully.
How can specialist legal advice help?
Specialist legal advice is invaluable in posthumous conception cases. The law in this area is highly technical, time-sensitive and emotionally complex.
A specialist fertility solicitor can help intended parents understand whether valid consent exists, advise on compliance with HFEA requirements, and identify any issues relating to legal parenthood, birth registration, inheritance and surrogacy at an early stage.
They can also work alongside fertility clinics and, where necessary, prepare urgent court applications if consent is unclear or capacity issues arise, helping families navigate the process with greater clarity and confidence at an already difficult time.
Posthumous conception is a deeply personal and sensitive area of law, but one point remains clear: consent is central.
The use of sperm, eggs or embryos after death raises complex questions about autonomy, legal parenthood, clinic regulation and the future welfare of any child conceived, all within a strict and highly technical legal framework.
Given the emotional and legal difficulties that can arise, anyone considering posthumous conception, or dealing with stored genetic material after a loved one’s death, should seek specialist legal advice as early as possible to understand their rights, options and obligations.
Contact Our Family Lawyers
If you have any questions about posthumous conception, fertility law or legal parenthood, our specialist Family Law team is here to help.
We provide clear, sensitive and practical advice on a wide range of issues relating to assisted reproduction, including consent, surrogacy, parenthood and fertility disputes.
To speak to one of our experts, please get in touch with our team today.
0161 941 4000
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Brittany Rodwell
Solicitor
Brittany is a Solicitor in our Family Team, with a particular interest in divorce and financial remedy proceedings.
Brittany qualified and joined the family team in September 2025 after completing her training contract at a Manchester City Centre firm in a Tier 1-ranked family team specialising in High Net Worth divorce and finances. She graduated from the University of Manchester in 2021 with a First Class Honours in Law and achieved a Distinction in the LPC with an integrated Master's at BPP University.
Brittany has experience with cases involving high net worth divorce and financial remedy proceedings often involving trusts, business assets, and pensions.
Brittany has experience with jurisdiction disputes, cohabitation agreements and pre-nuptial agreements and supporting clients with non-molestation orders, occupation orders and children matters.
She is a member of Resolution and is committed to resolving issues in family law disputes constructively and amicably.
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