A mother who wished to carry her deceased daughter’s baby was unlawfully refused permission, the Court of Appeal has held.
R (on the application of IM and another) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 centred on whether the Human Fertilisation and Embryology Authority (HFEA) was in breach of public law when it refused to approve the use of the appellant’s deceased daughter’s frozen eggs.
The woman, Mrs M, and her husband, wished to export the eggs of their late daughter, A, to the US, where doctors were due to create an embryo with anonymous donor sperm and implant it in her womb. Once born, the child would be brought up as the woman’s grandchild.
Their daughter had died in her 20s of cancer, and had signed a form agreeing to the eggs being used after her death. She wished her mother to carry her baby and believed all the paperwork was complete for this to happen. However, the HFEA refused permission to export the eggs after a UK clinic refused to proceed, on the basis there was insufficient evidence of the daughter’s wishes.
Delivering judgment, Lady Justice Arden said the HFEA had erred in its assessment of the evidence. She said it was unreasonable to expect the daughter to have considered the prospect of export or set out in detail matters which she expected her parents to decide, such as choice of sperm donor.
Arden LJ said: “A told her cousin in 2009 that she had already got her babies: ‘They are just on ice’… Having realised she would not survive, she wanted her mother to carry the child. It was very important to her that her eggs should not perish.”
Arden LJ also stated that the HFEA Committee, in treating the arrangement between A and her mother as simply a surrogacy arrangement, "failed to consider the possibility that A consented to her mother's use of the eggs for the purpose of bearing her child on the basis that her parents or her mother took all the detailed steps and brought up the child themselves".
Natalie Gamble, solicitor for the appellants, said: “This case is an incredibly sad story, and we would urge anyone storing eggs or sperm to record as clearly as possible in writing what they intend to happen if they die.
“However, the reality is that the specifics of the future are not always known, and [this] ruling importantly establishes that issues of consent have to be considered in their full context.”
The ruling means the HFEA must now consider the application again, taking into account the court’s decision.
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