What if my partner predeceases me before we have a child?

A review of a recent case concerning consent during fertility treatment.

When going through fertility treatment as a couple, it is always important to have open discussions with your clinic about how future events could impact how you can use embryos you have created together. This could be in the event that you separate or if one of you should fall ill or predecease the other.

What will happen in those circumstances will be determined, largely, by what consent forms you signed at the time.

Regulation
The donation, storage and use of embryos, and gametes (i.e. eggs and sperm), is regulated by the Human Fertilisation and Embryology Acts 1990 and 2008. These Acts set out in detail what procedures should be followed.

Consent should usually be in writing and embryos can only be used if there is effective consent in place.

Recent case law concerning consent
In a recent case ([2022] EWHC 1619 (Fam)), the Applicant’s wife tragically died while pregnant with twins while they were going through fertility treatment together.

She and the Applicant still had one embryo in storage, which he asked the Court’s permission to use with a surrogate to fulfil his and his late wife’s joint wish to have a family.

Ultimately, the Judge, in this case, was able to infer that the late wife would have consented to her husband using the remaining embryo in surrogacy in the event of her death, although this was not explicitly recorded in the consent forms she had signed. This was, however, in the context that the wife had not been given enough information from the fertility clinic to provide the relevant consents and any future cases would turn on their own facts.

As can be seen above, consent and how this is recorded on your clinic’s record is very important and should be thought about carefully, considering what you would both intend should happen in the future if your circumstances changed.

If you would like advice or guidance before returning consent forms to your clinic, please do not hesitate to contact one of our specialist team.

When building your family via surrogacy or another route, parents should consider reviewing or making a will to include a child, even if they are not yet born. Our specialist Wills lawyers can help you to do this.

If you have any questions or worries about how the Law will affect the registration of your child’s birth, please contact one of our specialist team. The fertility team at Osbornes have previously represented families in the declaration of parentage cases, where serious mistakes were made by fertility clinics.

If you are embarking on your own fertility journey and seeking advice, please do not hesitate to reach out to our specialist team of fertility lawyers.

The team, headed by the internationally respected lawyer, Naomi Angell, offers advice to intended birth parents, co-parents or donors on how the law applies and on what legal rights they will acquire on the birth of a baby or by subsequent agreement or court application, advice about parental responsibility, parentage and any dispute that may have arisen between parties.

Osbornes Law is one of the only law firms in London to specialise and advise families on different pathways to parenthood including in fertility law, surrogacy and adoption. Naomi and her team are happy to discuss these with you, to help you decide what is the best way for you to grow your family.