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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.
Describing what he said was “a very sad case”, Mr Justice Ouseley said the decision was partly due to a lack of paperwork: no document existed that explicitly detailed the daughter’s dying wish to have a child via surrogacy with her mother.
There was no evidence, Ouseley added, that the daughter had also considered vital matters like “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”.
Fearing further cancer treatment might leave her unable to have children, the daughter initially had her eggs frozen in 2008 and discussed surrogacy with her mother because she hoped she would live to raise the child herself. She was not married and had no partner, but having a family was “incredibly important to her”, her mother said.
As her illness became more 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.
Her mother had argued that she had told her she wanted her to carry any babies, and said she intended to have the eggs fertilised by an anonymous sperm donor. 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.’”
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.
However, a close and loving relationship with her parents did not mean A [the daughter] had consented to them making all these decisions, Ouseley said.
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”.
Ouseley ruled that the daughter, who died of bowel cancer in June 2011, had not given the required consent.
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 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 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.
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 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.”
