When consent is given to eggs, sperm or embryos being stored or used, the gamete provider is asked to decide what should happen if they die or become mentally incapable. They can allow their partner (or, if they are a donor, their recipient) to proceed with treatment using their gametes or embryos after they have died. It is very important that consent is given carefully and with sufficient detail, since the consent will be relied on after they have died and by then it will be too late to clarify their intentions.
As a general rule, the law is very clear about consent, and posthumous conception is only possible where there is a written signed consent to post-death storage and use (although consents provided before 1 October 2009 only had to be in writing and not signed). Timing is also often an issue, since consent to storage cannot be renewed or extended after the gamete provider has died.
However, there are some rare exceptions to this general rule. For example, Diane Blood fought a renowned legal battle to conceive using her deceased husband's sperm (which had been collected without his consent after he was unexpectedly incapacitated by meningitis). The court ultimately decided that it was an infringement of EU law to deny Mrs Blood her right to seek treatment elsewhere in Europe. Although treatment could not lawfully take place in the UK, the HFEA allowed Mrs Blood to export her husband's sperm to Belgium where she was successfully treated.