The slippery slope of presumed consent in post-humous reproductive health cases

It sounds like something out of a sci-fi film: A young man, on the cusp of starting a family with his wife, suffers a serious accident that renders him brain dead.

His wife, longing for the family they never started, requests access to his post-humous sperm to become pregnant and build the family she was denied.

After a long and arduous battle with the court system, the wife is granted permission to use her dead husband’s sperm to create her family, even though her husband never stated his family-building preferences in a will or otherwise provided consent to the use of his sperm.

If the situation seems fantastical (and a bit scary), beware: This is a true and landmark case that has shifted the consent paradigm for reproductive health on its head in the UK.

While the Human Fertilisation and Embryology Act of 1990 (as amended in 2008) requires written, informed consent to the use of a person’s reproductive materials, the case of Y v A Healthcare NHS Trust [2018] EWCOP18 (affirmed by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sper) [2022] EWCOP 48) departed significantly from this requirement to allow “presumed consent” as an alternative to informed consent.

This trend by the UK courts does not align with the strict letter of the law and is more akin to an opt-out organ donation framework for reproductive health. It begs two questions: (1) What is really in the best interests of a patient who lacks capacity to procreate? (2) Should gametes be treated the same as all other organs?

These are heavy questions that have sparked global debate. On one end of the spectrum, a 2016 article published in the journal Reproductive Biomedicine & Society Online argues that gametes, similar to organs, are resources that should be considered for use after death, given their life-creating properties.

The authors contend that once an individual is dead, they no longer have a meaningful interest in the use of their reproductive material and post-humous conception should follow a framework of presumed consent.

The authors base their argument in large part on studies conducted showing that the majority of men support their partners accessing their sperm for post-humous conception.

On the other end of the spectrum, however, is the fundamental need to protect the best interests of the patient, who is no longer capable of understanding or consenting to the creation of life.

Numerous situations may arise where a partner seeks to exploit a vulnerable individual for their reproductive materials. For example, imagine the situation where a husband has repeatedly said “no” to creating a family. If he then suffers a life-threatening accident, his spouse could claim that he had agreed to start a family and that his consent should be presumed.

The same rationale could apply to an abusive boyfriend seeking to exploit his girlfriend’s reproductive materials and demanding the post-humous harvesting of her eggs to be used in the future. This creates an environment that can easily result in exploitation of incapacitated individuals who do not have the ability to defend their own interests.

The rights and wishes of the deceased must have meaning if we are to respect human autonomy. These individuals are vulnerable, unable to protect their own interests, and at the mercy of others who may try to exploit them.

This becomes particularly concerning when we add in the scenarios of abusive relationships, suicide, and reproductive coercion. If the law does not protect the rights of the vulnerable, who will? In essence, the trending case law prioritises the interests of the living over the rights of the dead.

Presumed consent for post-humous conception is an incredibly slippery slope. Reproductive material is fundamentally different from other organs in that it is not lifesaving, but rather life-creating. If we allow an individual’s partner or family to make their post-humous reproductive choices, where do we draw the line?

In the case of Y v A Healthcare NHS Trust, the court relied on circumstantial evidence to presume the husband’s consent – such as the early fertility treatments undertaken by the husband. But what about cases in which such evidence is fabricated or in which consent has been withdrawn prior to the accident?

The fact of the matter is, there will always be factual permutations and attempts by individuals to manipulate existing legal frameworks to obtain the outcome they want. It won’t always be clear what the deceased wanted or whether the evidence of their desires has been forged.

As a society, our laws have historically protected the most vulnerable. Any decision to depart from this history should be made by a body of elected representatives that can carefully consider the broader ethical implications of this decision and its downstream impacts, not the courts.