In W V v X and King’s College Hospital NHS Foundation Trust [2022] EWCOP 48, a recent case heard in the Court of Protection, the parents of a young man who had suffered a stroke at the age of 22 sought permission to collect and store their son’s sperm with a view to posthumously conceiving his children in the future. The parents argued that their son had desperately wanted to be a father and that his girlfriend had expressed a desire to carry his child, submitting an application under the Mental Capacity Act 2005 to allow them to sign the required consent forms on their son’s behalf.
Mr Justice Poole, presiding over the case, rejected the parents’ reasoning. Drawing on Parrillo v Italy (Application no. 46470/11) ECHR, he reasoned that, although the young man may indeed have wished to be a father, “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.” Mr Justice Poole also questioned the lack of evidence showing that the man’s girlfriend wished to carry his child after his death and ultimately came to the decision that the consent requirements to store and retrieve the man’s sperm had not been met in this case.
Following this judgment, it was observed that it is crucial to record wishes surrounding this topic in writing and further noted that a Will would be an excellent place to do so. As such, although gamete retrieval and posthumous conception are topics that many are unlikely to have considered, it is highly advisable that dialogue on the topic is made more commonplace in the future, with Will writers playing their part and providing their clients with the opportunity to do so.
How can Tozers Help?
If this topic is of interest to you and you would like to consider recording such wishes in your Will, please do get in touch. With a breadth of knowledge and experience, our specialist Wills team will be happy to help.
