Posthumous use of embryos and gametes 

Use of embryos after death  

Preserving embryos and gametes offers certain individuals, including those undergoing medical treatment which may impact fertility, the chance to have children in the future. The law surrounding the use of embryos and gametes after death (or ‘posthumously’) is evolving, with notable case law emerging in recent years.   

The Human Fertilisation and Embryology Authority (HFEA) define a “gamete” as an individual reproductive cell, such as a sperm or egg. In contrast, an “embryo” is a fertilised egg that has started developing into a potential human being, formed when a sperm and egg merge during fertilisation. At its core, a gamete serves as the starting material, while an embryo signifies the result of fertilisation and the initial stages of development. 

This article in intended to clarify the legal position of posthumous use of embryos and gametes.  

What happens to your embryos and gametes if you pass away?  

Any embryos and/or gametes you have in storage can remain so for up to 10 years after your death if you have elected a named person to use them. If you have elected someone to receive your embryos and/or gametes, you need to have provided consent for both their use and their continued storage after your death. While the maximum storage period cannot exceed 10 years, it can be shortened with the appropriate consent form.  

If your embryos and/or gametes are not used within the 10-year period (or shorter period if specified), the clinic is required to remove all of your embryos and/or gametes and dispose of them 10 years and six months after your death.  

Use of your embryos by a named partner  

The HFEA, who are the UK’s independent regulator for fertility treatment and human embryo research, stipulate that posthumous use of embryos and/or gametes requires signed written consent from the donor before their death, as well as the purpose for which it can be used. 

Schedule 3 Paragraph 1 of the Human Fertilisation and Embryology Act 1990 confirms the following: 

1. Consent must be given in writing. 

2. Consent to use the embryo must be for one or more of the following reasons: 

1. Use in providing treatment to the person providing their consent, or that person and another specified person together. 

2. Use in providing treatment to persons not including the person giving consent. 

3. Use for the purpose of training persons in embryo biopsy, embryo storage and other embryological issues. 

4. Use for any research project. 

However, in the recent case of EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004, the court ruled that, despite the absence of written consent from the applicant’s late wife for posthumous use of her embryos, preventing the applicant from using the embryos would interfere with their Article 8 of the European Court of Human Rights (ECHR) rights in a ‘significant, final and lifelong’ way. Article 8 protects the right to respect for private and family life. The court could not justify the intrusion into the applicant’s life and recognised an implicit discretion to accept evidence of consent in forms other than writing if necessary to prevent a violation of Article 8. For a full commentary on this case, please see: EF v Human Fertilisation and Embryology Authority [2024] EWHC 3004 

Use of your embryos by a non-named partner  

The law differs if you have not designated a partner to receive or utilise your embryos and/or gametes which are in storage after your passing. In the recent case of G v Human Fertilisation and Embryology Authority and another [2024] EWHC 2453 (Fam), the applicant sought to use her adult daughter’s eggs posthumously. This was not permitted by the court. The court emphasised the importance of adhering to the HFEA regulations which require written consent. The court ruled that since the applicant was neither the deceased’s partner nor spouse, their Article 8 ECHR rights could not have been breached. 

Ethical considerations 

Posthumous reproduction raises several ethical issues that need careful consideration.  

The use of embryos and/or gametes after death creates a debate over conflicting rights and interests of the surviving partner or spouse, the deceased’s family and the potential child born from the embryos and/or gametes. The desires and rights of the surviving partner or spouse who wish to use the embryos needs to be balanced against the impact on a child born from posthumous reproduction, who will grow up without one biological parent. Additionally, the interests of the deceased individual’s extended family members need to also be considered.  

Moreover, recent case law has highlighted instances where embryos and/or gametes have been used posthumously without explicit written consent from donors. This raises the question of whether implied consent from a donor is sufficient, sparking debate on its acceptability. 

Helpful resources 

There are many support networks available those going through fertility treatment. The HFEA suggest exploring the following options:  

The Birketts view  

Posthumous use of embryos and gametes is an area of law that continues to evolve. Fundamentally, providing written consent on the use of your embryos and gametes ensures that your wishes regarding their use following your death are respected and followed.   

It is important to seek specialist legal advice in relation to posthumous embryo treatment. If there are any uncertainties regarding any of the content mentioned in this article please contact the Head of our Modern Families’ Team, Jennifer Headon.