Personal Injury, Serious Injury & Clinical Negligence

Appeal to permit a woman to have her daughter’s child by IVF to be heard.

The Court of Appeal has allowed a 60-year-old woman, who wants to use her late daughter’s frozen eggs to give birth to her own grandchild, to have her case heard.

In 2015, the woman, known only as M to protect the parties, was refused permission by the High Court to use her late daughter’s eggs to attempt to become pregnant by IVF. She was challenging the decision of the The Human Fertilisation and Embryology Authority (HFEA) to refuse to release the eggs, held in store in London, to a US fertility clinic, to be used in conjunction with donor sperm.

M’s daughter died of cancer in 2011 at the age of 28 years. She left no written consent approving the plan for her mother to give birth to a child on her behalf and as such the HFEA were left with little choice but to refuse the request on that ground alone.

The High Court was told by M and her legal team that the daughter had been desperate to have children and, knowing that she was dying, had asked her mother to “carry my babies”. It was argued that the known wishes of the deceased daughter should override the absence of written consent and that the woman’s right to a family under Article 8 of the European Convention on Human Rights was being breached.

The case was dismissed but the Judge was “conscious of the additional distress which this will bring to the claimants, whose aim has been to honour their daughter’s dying wish”.

Permission to appeal was sought from the Court of Appeal, to whom the appeal must be made. Initial indications were that permission would not be granted but after an oral hearing it was held that there was a sufficient case to argue in full before the Court of Appeal. The outcome is by no means guaranteed, permission to appeal is no indicator of the likely final decision. The ethical and moral issues surrounding such a birth may be complex and academically interesting but, known for its pragmatism, the Court of Appeal may find the absence of written consent a simple and sufficient answer to the dilemma. Nonetheless the possibility of M becoming the first woman to be the mother of her own daughter’s child remains live.

If you have experienced concerns regarding IVF treatment, particularly where the circumstances are unusual or unique, contact Chris Thorne, partner in the clinical negligence team, who has extensive experience of these issues. Chris.thorne@clarkewillmott.com or 0345 209 1461.