Q: My son had a heart-lung transplant fourteen years ago. He always knew the anti-rejection drugs could cause side-effects such as the lymphoma that sadly resulted in his death in 2017.
Before undergoing chemotherapy he was advised to have his sperm frozen in case he later wanted to have a family and was infertile. Whilst having the cancer treatment he had to stop the anti-rejection drugs and tragically he died last September. His on-off girlfriend of two years persuaded him to marry her just weeks before he died. As his wife she inherited everything of his. She even used his credit card to make online purchases the night he died. Now she wants his baby through IVF “to continue the family name”. Can we stop this happening?
A: The giving of explicit and informed consent is a legal requirement in relation to the use of gametes in fertility treatment, particularly when it concerns posthumous use.
From what you say it suggests your son’s intention was to use his frozen sperm to have a child with a partner if he felt so inclined and was left infertile after cancer treatment. By implication this did not necessarily mean he wanted children with the partner he later married, at a time when he was extremely vulnerable. Nor did it necessarily mean that he wanted to posthumously father a child.
However, he would have had to sign a consent form for sperm banking and would have been required to answer questions such as what he wanted to happen to his sperm in the event he became mentally incapacitated or died. Therefore, unless you know and can prove exactly what his wishes were, there is little you can do. If it is evidenced that he did not wish his sperm to be used after his death the Court of Protection will ensure his wishes will be carried out.