Family Law Week reports that in a recent case before the High Court, permission was refused for the parents of a deceased daughter to export her frozen eggs to the USA for fertilisation and implanting in the deceased’s mother.

The young woman’s eggs had been removed and frozen unfertilised, after she was diagnosed with bowel cancer. This step had initially been taken in order to preserve her chances of giving birth should she survive the illness, but be rendered infertile by either the disease or the treatment she was about to undergo. The consent form signed by her, provided for the continued storage of her eggs in the event of her death “for later use”. In addition, the form specifically refused consent for the eggs to be allowed to perish in the event of her death.

After being advised that her condition was terminal, the woman allegedly told her mother that she wished for one or more of the eggs, after being fertilised by a sperm donor, to be implanted in her mother and the resulting child to be brought up by her parents.

After she died, the IVF fertility clinic where the eggs were stored, refused to fertilise the eggs by an anonymous sperm donor and thereafter implant them in her mother. The clinic’s reason for refusal was that the deceased had not signed the necessary consent forms for the eggs to be used in this way, following her death.

The woman’s parents subsequently found a treatment centre in the USA which was prepared to carry out the treatment. However, as she had not given specific consent for export or posthumous use, they applied to the Human Fertilisation and Embryology Authority’s Statutory Approvals Committee to authorise the export of the eggs to the treatment centre in the USA for fertilisation and implantation in the deceased’s mother. This application was refused by the Committee, whereupon her parents brought judicial review proceedings in the High Court.

The parents argued that their daughter had signed a consent form for posthumous storage of her eggs; a form which also refused consent to destroy those eggs in the event of her death. The eggs could only be used for two purposes – research or fertilisation, and the deceased woman had expressly stated that she had chosen her mother to act as surrogate. As she herself had no partner at that time, she knew that a sperm donor would be necessary. Moreover, she had been unaware that she had to sign another form to authorise her precise wishes. In the absence of that knowledge, the parents stated, their daughter’s clearly expressed wishes should not be thwarted for want of the relevant paperwork.

The parents’ case was, however, rejected by Mr. Justice Ouseley, who considered that there was insufficient evidence to enable him to conclude that the woman had indeed wanted her mother to act as surrogate after her death; that the proposed use of the eggs had not been demonstrated to be exactly what she had wished for.

Moreover, the judge did not agree that the HFEA Committee was allowing a lack of relevant paperwork to stand in the way of the deceased’s clear wishes. In his opinion, her failure to sign the relevant forms was not the main issue in this case. Rather, the reason why it could not succeed was because many important issues had neither been considered nor resolved prior to her death. Specifically, there was an absence of evidence to show that she had in fact considered or agreed to her eggs being exported; had taken any steps to research sperm donors or would have consented to the use of an anonymous sperm donor selected by her parents, or had given proper consideration to the legal and other implications of her mother acting as surrogate.

In the judge’s view, there had been sufficient time between the woman being advised that she was terminally ill and her death, for her to obtain full information and issue clear instructions about her wishes. He also observed that the form which she had signed, referred to the existence of a further form which would have provided the consent required, to proceed in the way sought by her parents.

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