Life After Death…

How was a baby born four years after the death of his parents? And what does this mean for IVF providers in the UK?

The headlines were designed to grab our attention:

"Baby is born in China four years after parents died in car crash"

"Chinese baby born four years after parents' death"

There's no doubt that the story of baby Tiantian has evoked a huge response across the globe. Some saw it as a wonderful tale of love and life; others viewed it with a worried suspicion. But what are the real implications for IVF providers (and their insurers) here in the UK, and what might we expect to see by way of progress in the coming years?

To set the scene, having been married for a couple of years, Shen Jie and Liu Xi had been trying to conceive through IVF. In March 2013, five days before their fertilised egg was due to be implanted in Liu, they both died in a car crash.

After the tragic accident, and for the next three years, the parents of Shen and Liu fought a lengthy and complicated legal battle in the Chinese Courts – arguing that they should have the rights to the four frozen embryos that their children had left behind. They eventually won, and baby Tiantian ("sweet") was born in December 2017 to a surrogate in Laos (surrogacy being illegal in China).  He is now living with his grandparents.

Although the case has been reported as unprecedented, it should not come as such a shock in the UK, where our own laws allow the birth of a child through IVF after a biological parent has died (subject to express consent). And, in fact, a very similar case appeared in the UK not so long ago - Mr and Mrs M. v HFEA (Human Fertilisation and Embryology Authority).

In that relatively unreported case, which was concluded just last year, Mr and Mrs M's daughter had died five years previously (aged 28) from bowel cancer. They requested that the HFEA give them the rights to their daughter's frozen eggs – this was denied. The key contention centred on documentation. In the UK, the HFEA requires that the woman (or, if the eggs have been fertilised, both partners) decide what should happen to eggs in the event of death or mental incapacity. Unfortunately, Mr and Mrs M's daughter's forms had not been fully completed, and whilst the daughter had said that her eggs should be stored should she die, she did not specify what should subsequently happen to them. Whilst the family claimed that the woman wanted her parents to raise any potential offspring, there are no automatic inheritance rights in respect of eggs or embryos under UK law.

After two years of legal wrangling, the Courts overturned the HFEA's decision; Mr and Mrs M took their daughter's unfertilised eggs to the US for fertilisation by a sperm donor – they remain anonymous and there have been no further reports on the outcome of this. 

But what does all of this mean for IVF providers (and their Insurers) in the UK?

Well, there is a clear demand for IVF – over a quarter of a million UK babies have been born as a result – and there are many wonderful success stories – opportunities for business are vast. But there are definite risks – the potential for multiple pregnancies, ectopic pregnancy, OHSS to name just a few, and that's not taking into account the issues that arise if someone subsequently dies.

Perhaps though, the easiest and most cost effective way for providers and their insurers to respond to those risks is very simple – full, complete and thorough documentation (whether that be on a consent form, in medical records, or in ensuring that the IVF recipient(s) set out all their wishes explicitly) – which would mean that everyone's rights are protected.