Retrieval of storage of gametes where patients are unable to consent, or after death

21 July 2010

Advice for A&E Departments and Critical Care Units

1. The Authority has recently dealt with a small number of cases where patients are in
intensive care or A&E and

  • the patient is unable to give consent because of their physical state; 
  • relatives and/or partners wish to authorise the retrieval and storage of the patient’s gametes (sperm or eggs); 
  •  the patient is being cared for in an NHS Unit (usually an A&E or critical care facility) which is not licensed to undertake activities regulated by the Human Fertilisation and Embryology Act 1990 ( as amended).

2. NHS Trusts should be aware that

  • it is a criminal offence to undertake a licensable activity without a licence; 
  • retrieval and storage of gametes is not covered by the law and procedures relating to general organ donation and relatives do not have the right to give consent where none exists; 
  • in all circumstances of this kind they should seek their own legal advice immediately and before deciding on a course of action.

3. Our experience is that on the rare occasions that this issue arises it can be emotionally highly-charged and the time for effective decisions will be restricted. It is therefore particularly important that all NHS staff who might be expected to deal with these situations understand clearly that special considerations apply to the retrieval and storage of sperm and eggs. They should not be seen as equivalent to organs.

4. If you wish to know more please find advice on our website at http://www.hfea.gov.uk/139.html . In addition, attached to this is a technical note that explains some of the detailed legal provisions that apply to this area.

Yours sincerely
Alan Doran

Page last updated: 30 May 2012