The High Court has held that there was insufficient evidence to allow a mother (“M”) to fertilise her dead daughter’s (“D”) eggs and carry her grandchild as a surrogate mother.
A US fertility clinic had agreed to inseminate D’s eggs with donor sperm for M to carry the child and raise it as her grandchild. However, the Human Fertilisation and Embryology Authority in the UK refused the permit allowing the release of the eggs from storage on the basis that there was no evidence that D had wanted M to use the eggs in that way. D passed away at the age of 28 after losing her battle with bowel cancer. She completed forms requesting that her eggs be stored for 10 years after her death, but had failed to complete the form declaring how she wished for the eggs to be used.
M presented evidence at court that she had had conversations with D before her death in which D had said she wanted “her genes to be carried forward after her death” and that she viewed her eggs as “living entities in limbo waiting to be born”. The High Court was not satisfied that this, amongst other witness evidence, was sufficient to show that D consented to her mother carrying her child or that she understood the implications of that.
The Court made it clear that its decision was based purely on the lack of evidence of D’s consent to the enterprise, as opposed to any moral objection to a mother carrying her daughter’s child, or a surrogate of M’s age, 58.
The High Court appears to be saying that provided there is documentary evidence a patient such as D has consented to their mother, or similar relation, using eggs or sperm to carry a child as a surrogate, and that all implications to the health and welfare of all concerned have been understood and addressed, it would in law be possible for women or men with a terminal illness to request their mother to carry their child.
This case outlines the importance of pre-planning when it comes to arranging the storage of eggs and sperm. Witness evidence of a patient’s wishes or desires may not be sufficient to break the barriers in place to safeguard the donor in their absence.
Chris Thorne, Partner in Clarke Willmott’s clinical negligence team, specialises in fertilisation claims, and has worldwide recognition as an expert in this field following a number of high profile wins; including the leading case of Yearworth v North Bristol NHS Trust.
If you, or anyone you know, wishes to speak to Chris about a claim involving fertilisation, please contact him on 0345 209 1461 (Chris.Thorne@clarkewillmott.com).