Commentary on Sections Part 2:  Parenthood in Cases Involving Assisted Reproduction Section 40: Embryo transferred after death of husband etc. who did not provide sperm
177.Section 40 makes similar provision to section 39 for the case where donated sperm has been used. If the woman was married at the time of creation of an embryo using donor sperm and her husband dies before transfer of the embryo to her, she may elect that he should be treated as the child’s father for the purposes of birth registration, subject to the consents described above. If the woman and man were not married at the time of creation of the embryo, there are additional requirements in that the agreed fatherhood conditions must have been met immediately before the man’s death and the embryo must have been created in the course of licensed treatment services in the UK.