Woman’s Fight to Use Dead Daughter’s Eggs

In February of this year we commented on the decision to allow an appeal against the refusal of the High Court to overturn a decision of the Human Fertilisation and Embryology Authority, refusing permission for Mrs M to export her late daughters eggs to the USA, where she planned to undergo IVF and carry her daughter’s baby.

Mrs M, now 60 years of age, and her husband, sadly lost their daughter to cancer in 2011. She had desperately wanted children but was too ill to undergo IVF herself, although she had 3 eggs removed and stored for such use.

The headlines which this case has attracted are, not surprisingly, somewhat sensationalist in tone. The concept of a woman carrying and giving birth to her own grandchild is to some, an outlandish development in science and medicine.

In reality, the subject matter of the case itself has been far more prosaic. The HFEA Committee, who rejected Mrs M’s application neither considered Mrs M’s age nor her close blood relationship to any child as relevant to the issue of permission. What might be considered as the “moral issues” were outside the legal remit of the Court.

Instead, the case is not dissimilar to the series of cases heard by Sir James Munby, relating to failings in fertility clinic documentation and the subsequent rights of parenthood. Mr& Mrs M’s daughter had consented to storage and later use of her eggs after her death. What she had not done was provide specific written consent to the export of the eggs to the USA, use of donor sperm or her mother acting as surrogate. Mr & Mrs M sought consent from the HFEA to exercise it’s discretion to allow such steps based upon the evidence available. That evidence was primarily Mrs M’s recollection of conversations with her daughter, in which her daughter expressed the wish that her mother should bear and bring up her child after her death.

In a critical lead judgment by Lady Justice Arden (supported by Sir James Munby), Lady Arden found that the HFEA had “misstated” the evidence, in effect failing to take into account Miss M’s conversations with her mother. Furthermore the HFEA had failed to identify why Miss M required certain information, which she did not receive, about the treatment, in order to give consent and if she did have to have such information, what that information was. In simple terms, by analogy with the law relating to consent to medical treatment, she knew or had enough information in Lady Arden’s view, to have given valid consent to the use of the eggs in whatever manner her mother and father saw fit.

The court saw no need, in the light of it’s findings, to explore further the issue of “ownership” of the samples as considered in Yearworth and Others v North Bristol NHS Trust.

Mr & Mrs M’s fight is not yet over. The Court have found the HFEA decision to be irrational but that now means that the HFEA must reconsider it’s own decision and there is no reason to prevent it coming to the same conclusion on other grounds.

As solicitor for the Claimants in the Bristol, Sheffield and Edinburgh sperm destruction cases Chris has a unique insight into the challenges faced by clients and the shortcomings of the legal system when the choice to have a family is taken from people desperate to become parents, as a result of the failings of the medical profession

If you have experienced issues relating to fertility, infertility or IVF contact Chris Thorne on chris.thorne@clarkewillmott.com or 0345 209 1461.