A mother has lost her bid to use the frozen eggs of her dead daughter
so she could give birth to a 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 – 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.”
