To celebrate Fertility Week 2020 we are joined by our Family Law colleagues to look at a recent case which found its way into the Scottish Courts involving the use of people’s gametes after their death. The case highlights the importance of having a suitable and robust Will in place if you are going through fertility treatment.

Case Background

Last month, legal approval was sought in order to have a child using IVF with sperm stored by the Pursuer’s late husband. The husband had previously stored his sperm before undergoing treatment for cancer – which is becoming a very common practice.

The case, the first of its kind in Scotland, turned on whether the husband gave effective consent for his sperm to be used to create embryos in this way. Under the Human Fertilisation and Embryology Act (HFEA), specific consent is needed for the process, which the husband had provided for use in intrauterine insemination (IUI) (where sperm are introduced directly into the uterus). However, it was not until the husband was incapacitated and close to death that it was realised that he had not provided specific consent for the creation of Embryos at an IVF clinic.

Despite the specific consent forms not being completed, the husband’s Will contained a clear statement phrased as follows:

‘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 [my wife].’

The judgment concluded that the wording of the Will, combined with the fact that the couple had been referred for fertility treatment, was ‘expressing his wish for the future use of his stored gametes’.

‘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 Lord Justice Clerk, Lady Dorrian, stated, finding in favour of the wife.

Advice

Whilst it would always be preferable to complete the relevant clinical paperwork, this case has set an important precedent in Scotland. It reinforces the importance of having a suitable Will in place in case something untoward should happen when pursuing fertility treatment.

Of course, the hope is that a Will will not be necessary during your journey, but is reassuring to have in place and efficient for your family’s future. If you are considering fertility treatment, you may wish to consider putting a Will in place for the following reasons:

You can make provision for the use of your genetic material (as the above demonstrates);
You can make provision to appoint a suitable guardian for your unborn child;
You can include trust provisions so that your unborn child will not inherit outright at a young age.

At BTO we have a specialist Fertility Law team which covers every angle of your fertility journey, including solicitors who can advise on conception, parentage, the use and ownership of stored gametes, wealth and estate planning and family-friendly employment advice. We offer a 360-degree review of your specific circumstances from the outset and ensure that you are in safe hands so that you can focus on the important part – becoming a parent. Click here to learn more.

David White

Solicitor at BTO Solicitors LLP | Visit Profile

David is a Solicitor and Notary Public. He joined the firm as a Trainee Solicitor in September 2016 after graduating from Strathclyde University. He spent the majority of his traineeship within the Private Client department and has thus qualified into the department already having dealt with a wide variety of issues.
Read David's bio here.

Beverley Addison

Solicitor at BTO Solicitors LLP | Visit Profile

Beverley is experienced in dealing with all aspects of family law, including financial provision on separation and divorce, cohabitation and cases relating to children. She is also a well-known specialist in Fertility Law in Scotland, and regularly advises clients and organisations about matters such as surrogacy, assisted or donor conception, adoption and parenting for LGBT+ couples.
Read Beverley's bio here.