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Incapacitous patients, assisted reproductive technology, and the importance of informed consent
Published online by Cambridge University Press: 20 April 2023
Abstract
The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure that our reproductive materials are used within strict parameters. However, the growing number of posthumous conception cases in several jurisdictions has raised concerns, particularly in situations where gametes are extracted from incapacitous patients without their consent, leading to posthumous parenthood. The landmark case of Y v A Healthcare NHS Trust [2018] EWCOP 18 caused significant concern when it authorised the retrieval, storage and use of sperm from a suspected brain stem dead man for procreative purposes under the Mental Capacity Act 2005. It has never been known to be in the ‘best interests’ of a patient who lacks capacity to procreate in English law, and the consequences of this decision could be highly significant, raising questions about the exploitation of incapacitous patients and the misuse of genetic material. The decision has since been confirmed as the correct approach by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, and a public consultation has now been opened by the Human Fertilisation and Embryology Authority. This paper examines the rigorous consent regime of the 1990 Act and the ethical complexities of retrieving gametes from incapacitous patients for procreative purposes. It will be determined that the 1990 Act's preference for a rigorous consent regime for public policy reasons is appropriate, and any alternative forms of consent could open a slippery slope to the unethical use of vulnerable individuals for their reproductive materials.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The Society of Legal Scholars
References
1 Department of Health and Social Security Report of the Committee of Enquiry into Human Fertilisation and Embryology Cmnd 9314 (London, HMSO, 1984) (the Warnock Report).
2 R (Quintavalle) v Secretary of State for Health [2003] UKHL 13.
3 Ibid, [13].
4 R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151.
5 Evans v United Kingdom (6339/05) (2008) 46 EHRR 34.
6 ARB v IVF Hammersmith [2018] EWCA Civ 2803.
7 Y v A Healthcare NHS Trust [2018] EWCOP 18.
8 Sperling, D ‘Male and female he created them: procreative liberty, its conceptual deficiencies and the legal right to access fertility care of males’ (2011) 7(3) International Journal of Law in Context 375CrossRefGoogle Scholar at 375.
9 For more on this tricky area of law, see Ohl, DA ‘Electroejaculation’ (1993) 20 Urology Clinics of North America 181Google ScholarPubMed; Chung, PH, ‘Assisted fertility using electroejaculation in men with spinal cord injury – a review of literature’ (1995) 64 Fertility & Sterility 1CrossRefGoogle ScholarPubMed; Kerr, SM ‘Postmortem sperm procurement’ (1997) 157 Journal of Urology 2154CrossRefGoogle ScholarPubMed; Rothman, C Miles ‘Live sperm, dead bodies’ (1999) 20 Journal of Andrology 456CrossRefGoogle ScholarPubMed; Bahadur, G ‘Death and conception’ (2002) 17 Human Reproduction 2769CrossRefGoogle ScholarPubMed; Desai, RV et al ‘Post-mortem sperm retrieval: an ethical dilemma’ (2004) 116 American Journal of Medicine 858CrossRefGoogle Scholar; Shefi, S et al ‘Posthumous sperm retrieval: analysis of time interval to harvest sperm’ (2006) 21(11) Human Reproduction 2890CrossRefGoogle ScholarPubMed; Hans, JD ‘Attitudes toward posthumous harvesting and reproduction’ (2008) 32 Death Studies 837CrossRefGoogle ScholarPubMed; Kramer, AC ‘Sperm retrieval from terminally ill or recently deceased patients: a review’ 16(3) (2009) Canadian Journal of Urology 4627Google ScholarPubMed, and Williams, D ‘Over my dead body: the legal nightmare and medical phenomenon of posthumous conception through portmortem sperm retrieval’ (2011) 34 Campbell Law Review 181Google Scholar.
10 Re Cresswell [2018] QSC 142.
11 Ibid, [161], [164], [166], [183] and [189] (Brown J).
12 The Matter of Zhu, 64 Misc 3d 280 (2019).
13 Ibid, at 283 (John P Colangelo, J). See L Stack ‘Parents of West Point cadet fatally injured in accident obtain order to preserve his sperm’ (The New York Times, 5 March 2019).
14 We still await the judgment – Covid caused a delay in the case. See S Johnson ‘Mother of deceased transgender teenager launches landmark legal bid to preserve sperm’ (The Telegraph, 25 August 2020), and D McCann ‘Transgender girl's sperm to be stored pending case’ The Times, 11 September 2020. This author has covered Louise Anderson's case, and the case of Zhu, in more detail elsewhere: L Cherkassky ‘The use of assisted reproductive technology to create posthumous grandchildren’ (2021) 35(1) International Journal of Law, Policy and the Family ebab054, https://doi.org/10.1093/lawfam/ebab054.
15 Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619, [92], [102] (Theis J). For a detailed case note on Jennings, please see L Cherkassky ‘Jennings v Human Fertilisation and Embryology Authority: posthumous surrogacy with inferred consent’ (2023) 139 Law Quarterly Review 19. See also H Devlin ‘Widower wins right to have baby using embryo created with his late wife’ (The Guardian, 22 June 2022).
16 Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48.
17 Additionally, news broke in 2020 that a British woman had given birth to posthumous twins after her husband died of throat cancer three years previously: A Nachiappan ‘Woman gives birth to IVF twins three years after her husband died’ (The Times, 13 August 2020). See also (separately) ‘Woman makes Scottish legal bid to use late husband's sperm’ (The Guardian, 15 September 2020).
18 This list is not exhaustive, but other notable cases include: Re Denman [2004] 2 Qd R 595; L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam); Re the Estate of the late Mark Edwards [2011] NSWSC 478; Re Leith Dorene Patterson [2016] QSC 104; Mr and Mrs M v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611; and LT v DT Estate [2020] BCCA 328.
19 Warnock Report, above n 1.
20 Ibid, at 62 and 70.
21 Ibid, at 2 and 5.
22 Warnock Report, above n 1, at 16. This consent recommendation was also applied to spare embryos used in research at 66–67, suggesting that no embryos, not even embryos that were destined to be destroyed before implantation, were to be used without the informed consent of the gamete providers.
23 Warnock Report, above n 1, at 18, 55 and 57.
24 This was to ensure the timely winding-up of estates after death. It was later overturned by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, but the issue of probate remains.
25 For commentary on the 2008 reforms, see M Fox ‘The Human Fertilisation and Embryology Act 2008: tinkering at the margins’ (2009) 17(3) Feminist Legal Studies 333; N Gamble and L Ghevaert ‘Human Fertilisation and Embryology Act 2008: revolution or evolution?’ (2009) 39 Family Law 730; L Smith ‘Clashing symbols? Reconciling support for fathers and fatherless families after the Human Fertilisation and Embryology Act 2008’ (2010) 22(1) Child & Family Law Quarterly 46, and M Eijkholt ‘Procreative autonomy and the Human Fertilisation and Embryology Act 2008: does a coherent conception underpin the law?’ (2011) 11(2) Medical Law International 93. See also S McLean ‘Consent and the law: review of the current provisions in the Human Fertilisation and Embryology Act 1990 for the UK health ministers’ (1997) 3(6) Human Reproduction Update 593.
26 In a medical context, see the ground-breaking cases of Chester v Afshar [2004] UKHL 41 and Montgomery and Lanarkshire Health Board [2015] UKSC 11. For interesting commentaries on Chester and Montgomery, see J Stapleton ‘Occam's Razor reveals an orthodox basis for Chester v Afshar’ (2006) 122 Law Quarterly Review 426; C Foster ‘It should be, therefore it is’ (2004) 154 New LJ 7151; JK Mason and D Brodie ‘Bolam, Bolam – wherefore are thou Bolam?’ (2005) 9 Edinburgh Law Review 298; T Clark and D Nolan ‘A critique of Chester v Afshar’ (2014) 34 Oxford Journal of Legal Studies 659; R Bagshaw ‘Modernising the doctor's duty to disclose risks of treatment’ (2016) 132 Law Quarterly Review 182; C Hobson ‘No more Bolam please: Montgomery v Lanarkshire Health Board’ (2016) 79(3) Modern Law Review 488; L Sutherland ‘Montgomery: myths, misconceptions and misunderstanding’ (2019) 3 Journal of Personal Injury Law 157; G Turton ‘Informed consent to medical treatment post-Montgomery: causation and coincidence’ (2019) 27(1) Medical Law Review 108, and TT Arvind and AM McMahon ‘Responsiveness and the role of rights in medical law: lessons from Montgomery’ (2020) 28(3) Medical Law Review 445.
27 In agreement see MM Shultz ‘From informed consent to patient choice: a new protected interest’ (1985) 95 Yale Law Journal 219 and M Brazier ‘Patient autonomy and consent to treatment: the role of the law?’ (1987) 7 Legal Studies 172.
28 R v Human Fertilisation and Embryology Authority, ex p Blood [1996] 3 WLR 1176.
29 Ibid, 1188–1190.
30 R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151, 178.
31 Ibid, 179–180. For interesting commentaries on the Blood case, see C Dyer ‘Whose sperm is it anyway?’ (1996) 313 British Medical Journal 837; L Delaney and K Doyle ‘Fathers – who needs them – HFEA v Blood’ (1997) Family Law 261; D Morgan and RG Lee ‘In the name of the father? Ex parte Blood: dealing with novelty and anomaly’ (1997) 60(6) Modern Law Review 840, and from Mrs Blood herself: D Blood ‘Response to the consultation document of Professor McLean’ (1998) 13 Human Reproduction 2654.
32 L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam).
33 Ibid, [77]. The gametes were exported abroad at [33].
34 Centre for Reproductive Medicine v U [2002] EWCA Civ 565.
35 Ibid, [24] (Hale LJ).
36 Evans v United Kingdom (6339/05) (2008) 46 EHRR 34.
37 Evans v United Kingdom (6339/05) (2006) 43 EHRR 21, [63], [65]–[66]. Ms Evans later appealed to the Grand Chamber (n 36) and was met with the same response. The recent decision in Jennings v HFEA [2022] EWHC 1619 (Fam) contradicts Evans by concluding that Mr Jennings had a human right to use his deceased wife's embryo despite her lack of consent, at [102] (Theis J).
38 In the UK, the case of R v Ethical Committee of St Mary's Hospital (Manchester), ex p Harriott [1988] 1 FLR 512 confirmed that there is no ‘right’ to access to fertility services. See also J Montgomery ‘Rights, restraints and pragmatism: the Human Fertilisation and Embryology Act 1990’ (1991) 54 Modern Law Review 524.
39 TC Shevory ‘Through a glass darkly: law, politics and embryos’ in H Bequaert Holmes (ed) Issues in Reproductive Technology (New York, New York University Press, 1992) 232.
40 For commentaries on Evans see S Collier ‘Assisted reproduction – statutory overhaul overdue’ (2004) 154 (7140) New Law Journal 1201; J Miola ‘Mix-ups, mistake and moral judgment: recent developments in UK law on assisted conception’ (2004) 12(1) Feminist Legal Studies 67 at 76; S Sheldon ‘Gender equality and reproductive decision-making’ (2004) 12 Feminist Legal Studies 303, and ‘Evans v Amicus Healthcare; Hadley v Midland Fertility Services – Revealing Cracks in the Twin Pillars?’ (2004) 16(4) Child and Family Law Quarterly 437; A Alghrani ‘Deciding the fate of frozen embryos’ (2005) 13(2) Medical Law Review 244, and C Lind ‘Evans v United Kingdom – judgments of Solomon: power, gender and procreation’ (2006) 18(4) Child and Family Law Quarterly 576.
41 ARB v Hammersmith [2018] EWCA Civ 2803.
42 Ibid, [45], [49], [53] and [59] (Nicola Davies LJ). Writers have welcomed the decision in Hammersmith. See: C Auckland and I Goold ‘Claiming in contract for wrongful conception’ (2020) 136 Law Quarterly Review 45.
43 Y v A Healthcare NHS Trust [2018] EWCOP 18.
44 Ibid, [24]. There has been an identical case in Australia but with the opposite outcome. In MAW v Western Sydney Area Health Service [2000] NSWSC 358, O'Keefe J refused to use the jurisdiction of parens patriae to grant the request of a wife to retrieve her incapacitated husband's sperm for procreative purposes (explored more below).
45 Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48. Poole J refused to authorise the retrieval and storage of sperm in this case because, unlike Y v A, the incapacitated patient had not discussed the idea of posthumous conception during his lifetime and his girlfriend did not testify to such a conversation in court.
46 This writer published the initial case note on Y v A Healthcare NHS Trust which examines the decision of Knowles J in more detail. See L. Cherkassky ‘Y v A Healthcare Trust [2018] EWCOP 18 and the Mental Capacity Act 2005: taking gamete retrieval to the bank’ (2019) 135 Law Quarterly Review 209.
47 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
48 Ibid, 55.
49 Aintree University Hospitals Foundation Trust v James [2013] UKSC 67 and An NHS Trust v Y [2018] UKSC 46.
50 Re A (Mental Patient: Sterilisation) [2000] 1 FLR 549, and Re F [2015] EWCA Civ 882.
51 Wye Valley NHS Trust v B [2015] EWCOP 60, and B v D [2017] EWCOP 15. Although in contrast, see W Healthcare NHS Trust v H [2004] EWCA Civ 1324.
52 MAW v Western Sydney Area Health Service [2000] NSWSC 358.
53 Ibid, [68].
54 In line with Y v A, Poole J in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48 noted that had the incapacitated patient discussed posthumous conception during his lifetime, his consent would have been presumed for the retrieval and storage of his sperm, therefore allowing his parents to make the order.
55 See Re D (Wardship: Sterilisation) [1976] 2 WLR 279; Re B (Wardship: Sterilisation) [1988] AC 199; Re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re GF [1992] 1 FLR 293; Re W [1993] 1 FLR 381; Re HG [1993] 1 FLR 587; Re X [1998] 2 FLR 1124; Re A (Mental Patient: Sterilisation) [2000] 1 FLR 549; Re ZM and OS [2000] 1 FLR 523; Re S [2001] Fam 15, and BC v DD [2015] EWCOP 4.
56 BC v DD [2015] EWCOP 4.
57 Ibid, at [9], [10], and [66].
58 Ibid, at [67]–[69].
59 Or in the recent case of Re X (Catastrophic Injury: Collection and Storage of Sperm), the grandparents create their only grandchild.
60 See Collins v Wilcock [1984] 1 WLR 1172, 1177 (Lord Goff). In a medical context, see Pacific Railway Co v Botsford 141 US 250 (1891); Schloendorff v Society of New York Hospital 105 NE 92 (NY, 1914); T v T and Another [1988] 1 All ER 613; Airedale NHS Trust v Bland [1993] 2 WLR 316 (Lord Goff at 365); Re T [1993] Fam 95; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Re MB [1997] EWCA Civ 3093; St George's Healthcare NHS Trust v S [1998] 3 All ER 673; R v Tabassum [2000] Crim LR 686, and Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1. However, see Re Y (Mental Patient: Bone Marrow Donation) [1997] Fam. 110 where it was ruled that it was in the best interests of an incapacitous woman to donate her bone marrow (an invasive procedure) to her competent sister, who she barely knew, in order to maintain care home visits from their mother (per Connell J).
61 This writer has recently argued in great detail that performing electro-ejaculation upon a corpse for procreative purposes is a criminal offence under the Sexual Offences Act 2003, s 70. See L Cherkassky ‘Is interference with a corpse for procreative purposes a criminal offence?’ (2022) 85(3) Modern Law Review 577.
62 Y v A Healthcare NHS Trust [2018] EWCOP 18, [16], [20].
63 Ibid, [24].
64 [2018] EWCOP 18, [19], [26] (emphasis added).
65 [2022] EWCOP 48, [29].
66 R v Bourne [1939] 1 KB 687.
67 Y v A Healthcare NHS Trust [2018] EWCOP 18, [24] (emphasis added). This is remarkably similar to the recent decision in the posthumous case of Jennings, where Theis J stated: ‘the court can infer from all the available evidence that Ms Choya would have consented to Mr Jennings being able to use their partner-created embryo in the event of her death’ (n 15), [92].
68 K Tremellen and J Savulescu ‘A discussion supporting presumed consent for posthumous sperm procurement and conception’ (2015) 30 Reproductive BioMedicine Online 6 at 9. See also F Kroon ‘Presuming consent in the ethics of posthumous sperm procurement and conception’ (2016) 1(2) Reproductive Biomedicine & Society Online 123.
69 R v R [1991] 3 WLR 767.
70 This is a unique argument: N Hodson and J Parker ‘The ethical case for non-directed post mortem sperm donation’ (2020) 1 Journal of Medical Ethics 1.
71 RD Orr and M Siegler ‘Is posthumous semen retrieval ethically permissible?’ (2002) 28 Journal of Medical Ethics 299 at 301. It should also be noted that the Human Tissue Act 2004 specifically excludes gametes from its ambit at s 53(1), because of their special nature.
72 CM v The Executor of the Estate of EJ [2013] EWHC 1680 (Fam).
73 There is possibly one instance – blood or bone marrow donation from a saviour sibling child. This writer has already suggested in several publications that this is not in the best interests of the saviour child and is exploitative, and that the emotional benefit is purely speculative: L Cherkassky ‘Human Tissue Authority new draft code: supporting child donors or supporting parents?’ (2017) 5(2) Legal Issues Journal 1; ‘The interfamilial principle and the harvest festival’ (2016) 23 European Journal of Health Law 30; ‘The Human Tissue Authority and saviour siblings’ (2015) 3 Journal of Bone Marrow Research 158; ‘Children and the doctrine of substituted judgment’ (2015) 1 Medical Law International 1, and ‘The wrong harvest: the law on saviour siblings’ (2015) 1 The International Journal of Law, Policy and Family 1.
74 Feinberg has famously argued that the dead can be harmed: J Feinberg ‘Harm and self-interest’ in PMS Hacker and J Raz (eds) Law, Morality and Society: Essays in Honor of HLA Hart (Oxford, Clarendon Press, Oxford University Press, 1977) p 284. Also see P Griseri ‘Can a dead man be harmed?’ (1987) 10 Philosophical Investigations 317; J Fischer ‘Harming and benefitting the dead’ (2001) 25(7) Death Studies 557; KR Smolensky ‘Rights of the dead’ (2009) 37 Hofstra Law Review 763, and F Tomasini ‘Is post-mortem harm possible? Understanding death, harm and grief’ (2009) 23(8) Bioethics 441.
75 Egg retrieval is not possible without weeks of drug injections first, although this may be a hypothetical option if time allowed. Incapacitous intercourse is not as shocking as it sounds: in Tower Hamlets LBC v NB [2019] EWCOP 27, a judge held that a man could have sexual relations with his wife who had a ‘global learning difficulty’ and ‘limited senses’ because her capacity had not been ‘rebutted’ under the 2005 Act. This is not a fertility case, but it is authority to support the theory that the best interests test can be used to measure whether a person with learning difficulties can consent to sexual intercourse with their spouse or not. This is despite sexual activity being expressly excluded from the 2005 Act under s 27(1)(b).
76 The welfare of posthumously conceived children will be canvassed at another time, but for now, see K Ludlow ‘What about me – how far do we go in the best interests of the child in assisted reproductive technology’ (2006) 6 Queensland University of Technology Law & Justice Journal 214. For the psychological perspective on the impact on a child of a deceased father, see MO Huttunen and P Niskanen ‘Prenatal loss of father and psychiatric disorders’ (1978) 35 Archives of General Psychiatry 429; M Shinn ‘Father absence and children's cognitive development’ (1978) 85(2) Psychology Bulletin 295; R Levy-Shiff ‘The effects of father absence on young children in mother-headed families’ (1982) 53(5) Child Development 1400; DW Krueger ‘Childhood parent loss: developmental impact and adult psychopathology’ (1983) 37 American Journal of Psychology 582; M Burgner ‘The Oedipal experience: effects on development of an absent father’ (1985) 66 Internnational Journal of Psychology 311; KA Jones ‘Assessing the impact of father-absence from a psychoanalytic perspective’ (2007) 14(1) Psychoanalytic Social Work 43, and PA Boelen ‘Prolonged grief and post-traumatic stress in bereaved children’ (2017) 258 Psychiatry Research 518.
77 For an agonising testimony of a donor-conceived woman on the psychological distress she carried into adulthood of not knowing who her donor father was, see R (on the application of Rose) v Secretary of State for Health [2002] EWHC 1593 (Admin), which resulted in the HFE Authority (Disclosure of Donor Information) Regulations 2004.
78 R Jansen ‘Sperm and ova as property’ (1985) 11 Journal of Medical Ethics 123, 125. For the ‘unique’ nature of gametes, see B Bennett ‘Posthumous reproduction and the meanings of autonomy’ (1999) 23 Melbourne University Law Review 286.
79 Evans v Amicus Healthcare Ltd and Others [2005] Fam 1, [120] (Arden LJ).
80 There is no room to canvas the theory of relational autonomy in any detail on this occasion, but for the leading definitions of relational autonomy, see J Nedelsky Law's Relations: A Relational Theory of the Self, Autonomy and Law (Oxford, Oxford University Press, 2011); S Sherwin ‘A relational approach to autonomy in health care’ in S Sherwin (ed), The Politics of Women's Health: Exploring Agency and Autonomy (Philadelphia, Temple University Press, 1998) 19; A Donchin ‘Understanding autonomy relationally: toward a reconfiguration of bioethical principles’ (2001) 26 Journal of Medicine & Philosophy 367; C Ells ‘Lessons about autonomy from the experience of disability’ (2001) 27(4) Social Theory & Practice 599; C Mackenzie and N Stoljar (eds) Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (Oxford University Press, Oxford, 2002), and C Ells et al ‘Relational autonomy as an essential component of patient-centred care’ (2011) 4(2) International Journal of Feminist Approaches to Bioethics 79.
81 Parker, M ‘Response to Orr and Siegler – collective intentionality and procreative desires: the permissible view on consent to posthumous conception’ (2004) 30 Journal of Medical Ethics 389CrossRefGoogle ScholarPubMed at 391.
82 Y v A Healthcare NHS Trust [2018] EWCOP 18, [10].
83 Smajdor, A ‘Perimortem gamete retrieval: should we worry about consent?’ (2015) 41 Journal of Medical Ethics 437CrossRefGoogle ScholarPubMed at 440. See also Schiff, AR ‘Posthumous conception and the need for consent’ (1999) 170 Medical Journal of Australia 53CrossRefGoogle ScholarPubMed, and Simana, S ‘Creating life after death: should posthumous reproduction be legally permissible without the deceased's prior consent?’ (2018) Journal of Law & the Biosciences 329CrossRefGoogle ScholarPubMed.
84 Strong, C ‘Ethical and legal aspects of sperm retrieval after death or persistent vegetative state’ (1999) 27 Journal of Law, Medicine & Ethics 347CrossRefGoogle ScholarPubMed at 353. See also Hostiuc, S and Curca, CG ‘Informed consent in posthumous sperm procurement’ (2010) 282 Archives of Gynecology & Obstetrics 433CrossRefGoogle ScholarPubMed.
85 Evans v Amicus Healthcare Ltd and Others [2005] Fam 1.
86 Ibid, [37] and [91] (Thorpe and Sedley LJJ).
87 In a gender role reversal, if a woman who lacks capacity was harvested for her eggs so that her boyfriend, fiancé or husband could conceive her child, there would probably be significant criticism from a feminist, social, ethical and legal standpoint. There is the example of a pregnant woman being maintained on a life support machine until she gave birth, which was widely criticised: Frader, JE ‘Have we lost our senses? Problems with maintaining brain-dead bodies carrying fetuses’ (1993) 4 Journal of Clinical Ethics 347CrossRefGoogle ScholarPubMed. See also Greer, DM et al ‘Case 21-2010: a request for retrieval of oocytes from a 36-year-old woman with anoxic brain injury’ (2010) 363(3) New England Journal of Medicine 276CrossRefGoogle ScholarPubMed.
88 In Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, a man suspected to be brain stem dead nearly had his testicle removed for his sperm, had his girlfriend testified that he discussed posthumous conception during his lifetime (he did not).
89 This happened in the Australian case of Re Cresswell [2018] QSC 142 (see above, nn 10–11). Note the following alarming headline from recent times: ‘My wife wanted another IVF baby, so she faked my consent’ (The Times, 11 May 2022).
90 D McCann ‘Transgender girl's sperm to be stored pending case’ (The Times, 11 September 2020).
91 H Devlin ‘UK man brings High Court case to have dead wife's baby with surrogate’ (The Guardian, 5 May 2022).
92 C Baksi ‘Dying son's sperm cannot be frozen to create grandchild, judge rules’ (The Times, 21 November 2022).