High Court rules that mother can’t use late daughters frozen eggs

A mother has lost her bid to give birth to a grandchild using her late daughter’s frozen eggs. London’s High Court has ruled that there was insufficient evidence available to show that it was the wish of her late daughter, and no documentary consent could be produced.

Eggs frozen in 2008 during cancer treatment

The High Court has ruled to prevent a mother from using her late daughter’s frozen eggs to carry a grandchild. The unnamed 59-year-old woman, along with her 58-year-old husband, had petitioned the court after the UK’s IVF regulator – the Human Fertilisation and Embryology Authority (HFEA) – had refused to issue the “special direction” necessary to allow the eggs to be transported for use.

The couple’s daughter died of bowel cancer age just 28 in June 2011. During her illness, out of concern that treatment for her cancer may leave her unable to have children, the young woman took the decision to have her eggs frozen in 2008. The Court heard how she discussed surrogacy with her mother at the time, while she hoped she would recover to look after the child herself. Although she was not married and had no partner, the young woman was said to have described having a family as “incredibly important to her”. Recalling a particular conversation to the court, the mother said that while receiving treatment, her daughter believed her frozen eggs were already her children. The mother said her daughter had stated; “I already have my babies, they are on ice”.

As her health deteriorated and the cancer became more severe, the daughter signed a form saying that if she died, she did not want her eggs to perish and requested that they be stored for 10 years. However, a separate, accompanying form, requesting instructions on what should happen to the eggs, was never completed.

After her death, the woman’s mother instigated action to carry her daughter’s baby as a surrogate, with the intention of using a donor sperm. IVF Hammersmith – where the eggs were stored – said that the woman’s request went “beyond what a patient may have consented to, and we cannot assume that these were her specific wishes. With the UK clinic refusing to proceed, the couple found a clinic in New York that indicated a willingness to provide the fertility treatment at a cost of £60,000. IVF Hammersmith agreed to release the eggs, subject to the consent of the HFEA.

The HFEA refused to issue the necessary “special direction” to allow the eggs to be exported to the USA. It argued that no written consent to the mother acting as a surrogate had been provided. The HFEA’s statutory approvals committee decided in 2014 that there was insufficient evidence to proceed and refused the request. The couple appealed the decision in court.

No document existed to explicitly give consent

Hearing the evidence, Mr Justice Ouseley described the matter as “a very sad case”. The mother outlined her intention to transport the eggs of her “only and much-loved child” and her desire to fulfill her daughter’s wishes to have a child. In a statement to the court, she relayed a conversation with her daughter:

“[She said] ‘They are never going to let me leave this hospital – the only way I will get out of here will be in a body bag. I want you to carry my babies. I didn’t go through IVF to save my eggs for nothing.'”

Mr Justice Ouseley expressed grave sympathy for the family but dismissed the case. He said he was “conscious of the additional distress which this will bring to the claimants, whose aim was to honour their daughter’s dying wish for something of herself to live on after her untimely death”.

However, he considered that there was insufficient evidence of the daughter’s consent. He said his decision was partly due to a lack of paperwork, as no document existed that conclusively or explicitly detailed the daughter’s intention to have her mother carry a child as a surrogate after she died. He added that it was not possible to demonstrate that the daughter had considered other “vital matters”, such as “the implications on her mother’s health, or the implications of her mother acting as a surrogate, namely that her mother would be the legal mother of her daughter’s child”. He made clear that it was not a moral dispute, nor an issue with the mother’s age, but that he was not convinced that the daughter had understood the full implications of surrogacy after her death during discussions with her mother.

In stating that he had not been persuaded that there had been a breach of the parents’ human rights, Mr Justice Ouseley refused permission to appeal as he believed the case had limited prospects of success. However, the couple do have the right to appeal directly to the Court of Appeal. Had they have been successful, the woman would be the first in the world to become pregnant using a deceased child’s eggs.

After the ruling, a HFEA spokeswoman said:

“This is a very sad case, and the ruling must be heartbreaking for the couple. The case was about whether the couple’s daughter had given fully informed consent for her mother to use her eggs after her death.

“Our committee considered this case on three separate occasions, considering very carefully the new evidence given each time, but decided that there was not the kind of fully informed consent required by the law.”

Care proceedings, adoption and family law experts

For more information please contact our childcare, care proceedings and domestic violence solicitors on 01895 207857 or email childcare@ibblaw.co.uk.