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Mother loses bid to use dead daughter's frozen eggs to give birth to grandchild Mother loses bid to use dead daughter's frozen eggs to give birth to grandchild
(about 1 hour later)
A mother lost her bid on Monday to use her dead daughter’s frozen eggs in order to give birth to her own grandchild, after a judge ruled there was insufficient evidence it was her late daughter’s wish. A mother has lost her bid to use the frozen eggs of her dead daughter so she could give birth to her own grandchild, after a judge ruled there was insufficient evidence this was her late daughter’s wish.
The unnamed 59-year-old woman and her husband, 58, referred to as “Mr and Mrs M”, had challenged a regulator’s refusal to allow them to transport the frozen eggs to a US fertility treatment clinic. The unnamed 59-year-old woman and her husband, 58 – whose daughter died from cancer aged 28 – had challenged a regulator’s refusal to allow them to transport the frozen eggs of their “only and much loved child” to a US fertility treatment clinic.
Mr Justice Ouseley, however, ruled that her daughter, who died of bowel cancer at the age of 28 in June 2011, had not given the required consent. Describing what he said was “a very sad case”, Mr Justice Ouseley said the decision was due to a lack of paperwork: no document existed that explicitly detailed the daughter’s dying wish to have a child via surrogacy.
Dismissing the claim at the high court in London, 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”. As her illness became severe, the daughter signed a form saying she did not want her eggs to perish in the event of her death and said they should be stored for 10 years. However, there was a separate form, requesting instructions on what should happen to the eggs, which she never completed.
The Human Fertilisation and Embryology Authority (HFEA) had argued the daughter had died without giving written consent allowing her mother to act as a surrogate. Her mother had argued that she had told her she wanted her to carry any babies. In a statement to the court, the mother, referred to as Mrs M, described a conversation with her daughter: “[She said] ‘They are never going to let me leave this hospital mum – 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.’”
Mrs M submitted a statement to the court describing her daughter’s suffering during her bowel cancer, and said she had “wanted her genes to be carried forward after her death”. She had her eggs frozen after her diagnosis at the age of 23. A pregnant cousin, who visited the daughter in hospital, said she had feared upsetting her sick relative. But Mrs M said in her statement that her daughter believed her frozen eggs were already her children. “‘I already have my babies, they are on ice,’” she is said to have told her cousin.
Her parents said she regarded the eggs as “living entities in limbo waiting to be born”. However, the judge found her wishes “lacked a definitive and settled expression; she had not focussed on the practical and legal issues and she had had time to discuss them with her mother and doctors but did not do so.”
The issue of consent hinged on a document from A detailing what could be done with the eggs but not signed. IVF Hammersmith, where the eggs were stored, said Mrs M’s request to carry her daughter’s child went “beyond what a patient may have consented to, and we cannot assume these were her specific wishes”.
That was reason enough for the judge to rule there was no certainty she consented to her mother carrying a future surrogate child on her behalf, or that understood the implication of her asking for that to occur. Ouseley ruled that the daughter, who died of bowel cancer in June 2011, had not given the required consent.
Mr Justice Ouseley said he had been persuaded there had been no breach of the parents’ human rights and refused permission to appeal, saying he was not convinced it would have much prospect of success. Dismissing the couple’s claim at the high court in London, 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”.
The parents do, however, have the right to appeal directly to the Court of Appeal. The judge added that the decision to deny the procedure was not made because of Mrs M’s advanced age or any moral dispute over a mother acting as a surrogate for her dead daughter’s child.
A New York clinic had indicated it would provide the £60,000 fertility treatment with donor sperm, but the case came to court after the HFEA refused to issue a “special direction” allowing the eggs to be released from storage at Hammersmith hospital for export to the US. A New York clinic had indicated it would provide the £60,000 fertility treatment with donor sperm, but the case came to court after the Human Fertilisation and Embryology Authority (HFEA) refused to issue a “special direction” allowing the eggs to be released from storage at Hammersmith hospital for export to the US.
The HFEA had argued the daughter had died without giving written consent allowing her mother to act as a surrogate.
The mother said in her statement to the court the daughter had “wanted her genes to be carried forward after her death”. She had her eggs frozen after her diagnosis at the age of 23. Her parents said she regarded the eggs as “living entities in limbo waiting to be born”.
The judge ruled there was no certainty she consented to her mother carrying a future surrogate child on her behalf, or that she understood the implication of her asking for that to occur.
Ouseley said he had been persuaded there had been no breach of the parents’ human rights and refused permission to appeal, saying he was not convinced it would have much prospect of success. The parents do, however, have the right to appeal directly to the court of appeal.
The HFEA’s statutory approvals committee (SAC) decided in 2014 that there was insufficient evidence to show the daughter wanted the eggs used in the way her parents suggested after her death.The HFEA’s statutory approvals committee (SAC) decided in 2014 that there was insufficient evidence to show the daughter wanted the eggs used in the way her parents suggested after her death.
It is thought that if the case had been won, Mrs M could have become the first woman in the world to become pregnant using a dead daughter’s eggs.It is thought that if the case had been won, Mrs M could have become the first woman in the world to become pregnant using a dead daughter’s eggs.
An HFEA spokeswoman said: “This is a very sad case, and the ruling must be heart breaking for the couple. An 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.
“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.”“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.”