Husband's will completed consent for IVF with semen

The widow of a man who died leaving a will declaring his wishes for the storage and use of his sperm to conceive a child by IVF, but who did not complete all the necessary statutory forms, will be allowed to receive the IVF treatment following a decision of the Court of Session.

Lord Justice Clerk Lady Dorrian, Lord Glennie and Lord Woolman granted a petition to the nobile officium by the woman, SB, and declared that her late husband, JB, gave effective consent to the storage of his gametes, to their use for the creation of an embryo or embryos in vitro, and to these being used for the treatment of SB, and for their storage, all in terms of schedule 3 to the Human Fertilisation and Embryology Act 1990.

JB had been taken ill in about 2010. His doctor advised him to have his sperm stored as his treatment might make him infertile. He had not then met SB, and signed the statutory consent forms appropriate to men without partners but requiring long term storage of their semen. He was given, but only partially completed, the forms appropriate to men with a partner. He confirmed his wishes in subsequent years, and after his marriage to SB they began fertility treatment, but it was only realised just before his death, when he was already unconscious, that the forms remained uncompleted. However he executed a will will a clause that stated "I direct my executors to ensure that my donation of sperm will be, for as long as possible, and for as long as she may wish, available to [SB]."

Answers to the petition were lodged by the Advocate General for the Secretary of State for Health and Social Care, who did not oppose it provided the court was satisfied that the will, alone or with completed forms, constituted effective consent and did not subvert the statutory scheme; and by the Human Fertilisation & Embryology Authority. The HFEA considered that effective consent was given by JB for the storage of his gametes and their use in the treatment of SB, but was unable to conclude that effective consent can been given to the creation of embryos in vitro or their storage.

Lady Dorrian, giving the opinion of the court, accepted that the petition was competent, as an action for declarator might require examination of the whole legislative scheme. 

The court would proceed on the basis that the requirements for effective consent to the use of JB's gametes for IVF treatment were that it must be in writing; it must be signed by him; it must specify the purpose of use, and clearly encompass IVF; JB must have been given a suitable opportunity to receive proper counselling about the implications, and about variation or withdrawal of consent; and consent must not have been withdrawn.

She continued: "In our view, the terms of the deceased’s will constitute sufficient consent to meet these requirements. It is in writing, it is signed and it has not been withdrawn. The remaining two conditions for effective consent relate to the opportunity for counselling and whether the terms of the clause are sufficiently clear to provide consent for the specific form of treatment that is involved in IVF."

The first of these had clearly been satisfied during JB's various clinic appointments. Regarding the second, "The only question is whether [the will] can be construed as granting the necessary consent. In our view there is no doubt that it can. It is the sort of provision that would only sensibly be made by a man contemplating his death in the near future, and seeking to make his wishes clear. The heading refers not merely to fertility but to 'embryology'. The clause itself is expressed unconditionally and in the widest terms. It specifies that the material be 'available' to SB, in other words available for her unqualified use, thus covering the prospect of her treatment, given the known context, and meeting the terms of paras 6(2) and 2(1)(b) of [sched 3]. All these factors point unerringly toward JB having given consent to IVF treatment. Consent to use of the gametes for the purpose of IVF must impliedly include consent for the storage of any embryos thereby created, thus meeting also the terms of para 8 of the schedule."

It also constituted written consent to storage in excess of 10 years in terms of 2009 regulations dealing with infertility.

The court made a declaration in terms that were agreed following discussion.

Click here to view the opinion of the court.