A recent case heard in the Court of Protection has offered a stark reminder that clear consent for one’s gametes to be retrieved is paramount – a simple desire to be a parent will not suffice. What’s more, it has been suggested by a leading family lawyer acting on the case that will writers could play a key part in preventing such situations arising in the future.
In W V v X and King’s College Hospital NHS Foundation Trust  EWCOP 48, an incapacitated young man suffered a stroke at the age of 22. With his condition unlikely to improve amidst the very real prospect that he could’ve been pronounced brain stem dead within 24 hours, his parents made an application to the Court for the collection and storage of his sperm.
Despite no clear consent for such a procedure from the man, his parents were certain he wanted to be a father having heard him “for many years speak [of] wanting children of his own”, citing the fact he kept toys and other belongings to give to his own child one day.
The parents also said his girlfriend expressed a desire to carry his child, though they had no evidence from her.
It was added that he had discussed being a dad with his friends, even discussing what type of dad he would be.
Therefore, they applied to have his father sign the consent form under the Mental Capacity Act 2005 to allow the extraction and storage of the sperm, with the application for permission to use to be heard at a later date.
However, Mr Justice Poole, presiding over the case, queried the fact there was no evidence of his girlfriend’s desire to carry his child, not of the man’s views and beliefs. This contributed to Mr Justice Poole’s assertion that none of the Human Fertilisation and Embryology Act 1990’s Schedule 3 requirements for consent were met.
He also explained the distinction from previous cases such as Y v A Healthcare Trust  EWCOP 18, wherein an application in similar circumstances was allowed given the HFEA 1990’s consent requirements were met.
Notably, there was hard evidence in that case that the man had discussed creating embryos with his girlfriend and what would happen in the event of him dying. He gave consent for his gametes to be used – something absent in this “factually far apart” case, said Mr Justice Poole.
Another issue cited by Mr Justice Poole regarded the “clearly invasive” method of collection which would have involved removing or partially removing one of his testes before extracting, freezing, and storing his gametes.
Following Parrillo v. Italy (Application no. 46470/11) in the ECHR, Mr Justice Poole said the ability of an applicant to exercise a conscious and considered choice regarding the fate of their embryos concerned an intimate aspect of their personal life, of their right to self-determination, and thus of their private life – thus engaging the man’s Article 8 rights under the European Convention of Human Rights.
Any violation of those Article 8 rights must be “necessary and proportionate” following K v LBX and others  EWCA Civ 79. Considering this and all the circumstances, Mr Justice Poole refused the application:
Weighing all the relevant matters in the balance I conclude that it is not in X’s best interests to make the declarations sought. The declarations if made would lead to a significant interference with his Article 8 rights and I am not persuaded that the interference would be necessary or proportionate.”
Mr Justice Poole had also earlier made the point that “it is one thing to have a consistent and heartfelt desire to be a living, caring father. It is quite another thing to wish to have one’s sperm collected and stored when unconscious and dying, with a view to the possibility of the sperm being used for conception after one’s death, and without having expressed any view when living about how the sperm should be used”.
“I believe this case will serve as a prompt to those considering children, to think about whether they would want their partner, or their parents, to be able to create posthumous children with their gametes after death,” said Natalie Sutherland, Partner at Burgess Mee who acted for the parents of the young man. She added:
“Whilst those already undergoing fertility treatment in a licensed clinic will have been asked these questions and asked to sign the relevant consent forms, for those who are not already in treatment, this might not be something they have ever thought about.”
Sutherland added that it is “crucial” to record wishes in writing – suggesting one good idea is to put consent into one’s will:
“We never know when death will happen and, if you would like your partner or parents to have the opportunity to use your gametes after death, or if you wouldn’t, tell them now and record those wishes in writing.”