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15 September 2003

Dear Colleague,

URGENT: POSTHUMOUS CONCEPTION - CONSENT REQUIREMENTS FOR BIRTH REGISTRATION

I am writing to you regarding changes to the law which will allow a deceased man, in certain circumstances, to consent to his particulars being recorded in the birth register of a child born as a result of fertility treatment undertaken after his death.

The Human Fertilisation and Embryology (Deceased Fathers) Bill is a Private Members Bill currently progressing through Parliament. We have just been informed that, subject to clearance by the House of Lords, the Bill is expected to receive Royal Assent on Thursday 18 September. The Bill will amend the law to allow a deceased man to be recorded in the birth register as the father. There will be certain requirements on both the father and mother in order for this to happen, which are additional to existing consent requirements for treatment. If these requirements are not met, the man cannot be registered as the father.

Although the law will allow the deceased man to consent to being recorded in the register of births as the father, it will not confer any inheritance or other legal rights. Men who have any concerns about the legal position, for example, concerning provision from their estate for children conceived posthumously will need to seek their own legal advice.

The changes in the law are expected to come into force approximately two months after Royal Assent. However, specific requirements for the man's written consent to have his particulars recorded in the register of births as the father will come into effect immediately once the Bill receives Royal Assent. Clinics will need to make those current patients who are considering making provision for posthumous conception aware of the requirements listed overleaf. For example, men who are putting sperm into storage with consent to posthumous use, should be made aware of these additional consent requirements if they wish to be registered as the father of a resulting child.

Clinics should also take steps to identify and contact those men who have already consented to storage of sperm or embryos with consent for posthumous use, as they will also be subject to these written consent requirements if they wish to be registered as the father. These requirements will not, however, apply to men who died before the Bill receives Royal Assent.

Further guidance will follow detailing the full range of requirements and documentation (including requirements placed on the mother) needed to effect the birth registration. This will include revised consent forms where appropriate. In the meantime, a signed letter or statement which confirms (if appropriate) that the man wishes to have his particulars recorded in any resulting child's birth register should be obtained. This could be achieved, for example, by a handwritten amendment to existing consent to posthumous use of gametes/embryos.

Information regarding the passage of the Bill will be posted on the HFEA website. Further information regarding consent requirements is enclosed, but if you require urgent advice during this interim phase please contact Dr Peter Mills by phone on 020 7539 3308 or by e-mail at peter.mills@hfea.gov.uk.

Yours faithfully,

Suzi Leather
Chair

 (Enc's)

---

In order for the man to be registered as the father of a child resulting from fertility treatment undertaken after his death, the man must have consented in writing (and not withdrawn his consent) as detailed below.

In all cases, the man should have consented to release information regarding the treatment undertaken to the Registrar General.

A.        Married couple using the husband's sperm.

• to the use of his sperm after his death which brought about the creation of the embryo carried by the woman, or
• to the placing in the woman after his death of the embryo which was brought about using his sperm before his death

AND

• to being treated as the father of any resulting child for the purpose of recording his particulars in the register of births

B.         Unmarried couple using the partner's sperm.

• to the use of his sperm after his death which brought about the creation of the embryo carried by the woman, or
• to the placing in the woman after his death of the embryo which was brought about using his sperm before his death

AND

• to being treated as the father of any resulting child for the purpose of recording his particulars in the register of births

C.        Married couple using donor sperm.

• to the placing in the woman after his death of the embryo created before his death

AND

• to being treated as the father of any resulting child for the purpose of recording his particulars in the register of births

D.        Unmarried couple using donor sperm.

• to the placing in the woman after his death of the embryo created before his death

AND

• to being treated as the father of any resulting child for the purpose of recording his particulars in the register of births

Definitions:
"the woman" means the man's wife or partner as the case may be.

"the embryo" means the embryo placed in the woman from which the child carried by the woman has resulted.

"particulars" means the man's name and surname, place of birth and occupation.

Page last updated: 14 April 2009

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