Child conceived but not yet born

We have discussed previously the legal notion of a child who is En Ventre Sa Mere – in the mother’s womb. Who for the purpose of inheritance, is treated as having been in existence at the time of their parents death if the child is subsequently born alive.

Recently the English Court of Appeal has ordered the Human Fertilisation and Embryo Authority (HFEA) to reconsider an application by a 60-year-old British woman who wants  to receive fertility treatment in the United States using her dead daughter’s frozen eggs to give birth to a grandchild.

The woman’s daughter who died of bowel cancer in 2011 aged 28 wanted to have IVF treatment but became too ill.

HFEA faced an issue that the daughter had consented to treatment for egg removal and storage (including storage after her death) and also to the use of (other than for research purposes) her eggs after her death- however she didn’t specifically consent to the proposed treatment.

The Court heard that the daughter was desperate to have children and asked her mother to “carry my babies”, believing she had signed all the necessary forms to authorise her mother to carry her child after her death.

The HFEA, which had great sympathy for the parents of the dead daughter, argued that after much consideration it had decided that there wasn’t sufficient evidence of informed consent.

The Court of Appeal reaffirmed the need for informed consent but concluded there was sufficient evidence of the daughter’s true wishes.

Although the egg was unfertilized Australian Courts considered the issue that may arise with the implantation of an embryo following the death of one of its parents. In that matter a couple wished to have children, and commenced IVF treatment. The procedure was successful and three of the five embryos produced were implanted; their son was born. The couple later married intending to have another child by way of the implantation of the remaining embryos.

Shortly after they married the husband died intestate leaving four children, three from a previous relationship. Intestacy rules dictated that his widow was entitled $50,000  and one-third of the estate residue, and the children the remaining two-thirds. The gross value of the estate was $179,000.

If an in vitro child, born posthumously, is at birth the biological child of the father and mother, irrespective of the date of implantation, and in all other respects (except time) identical to a child en ventre sa mere then the legal principles applicable to a child en ventre sa mere should likewise be afforded to an in vitro child.

The Court had to consider if fertilisation has occurred and, although in stasis, the embryo possesses a potential for live birth- is this the same as a sibling, en ventre sa mere?

Legislation provides that where a married woman, with the consent of her husband, undergoes a fertilisation procedure as a result of which she becomes pregnant, the husband shall, for the purposes of the law of the State, be treated as if he were the father of any child born as a result of that pregnancy.

In the present circumstances a frozen embryo not implanted at the date of the father’s death would not meet the requirements of a child en ventre sa mere.