Grandparents allowed to appeal embryo ruling

Family Law | 24 Feb 2016 5

The parents of a woman who died from cancer have been granted permission to appeal a ruling that they cannot use her frozen eggs.

Their unmarried daughter was just 29 when she died from bowel cancer in 2011. As treatment for the illness threatened her fertility, she had decided to store frozen eggs at a clinic in London. When it became clear that she may not survive, her mother claimed they discussed the possibility of a fertilised egg being implanted so she could try and carry her own grandchild, which she would then raise with her husband, the deceased woman’s father.

She insisted that her daughter had believed:

“…her eggs held a life force and were living entities in limbo waiting to be born. She was clear that she wanted her genes to be carried forward after her death.”

However, the daughter did not leave anything in writing clearly expressing her wishes. After her death, her mother tried to undergo the procedure at clinics in the UK, but none were willing to treat her. She then found a clinic in the United States where she lives, and applied permission to have the eggs taken out of storage and sent over. But the Human Fertilisation and Embryology Authority (HFEA) refused to issue the necessary permit, saying there was not enough evidence to prove the daughter had really wanted her eggs to be used in that way.

The HFEA regulates fertility clinics in the UK.

They sought a judicial review of the decision but Mr Justice Ouseley backed the regulator at hearing in May last year. Despite this, his judgement expressed sympathy for the couple, saying the deceased woman had been:

“… the only and much loved child of the Claimants.”

He continued:

“It is her parents’ desire to carry out her deepest wishes, as they believe them to be, which underlies this very sad case.”

But the would-be grandparents have now been given to appeal the ruling, accepting claims that the HFEA may have been too strict and not fully considered evidence of the woman’s wishes.

Following the announcement, th mother said they had been “devastated” by the previous refusal and welcomed the opportunity to take their case to a fresh hearing in the Court of Appeal.

She added:

“With characteristic strength of mind, [our daughter] put herself through a difficult egg collection process while she was having treatment for cancer because she was so determined to save her eggs. She diligently completed and signed all the paperwork she was ever given to say that she wanted her eggs to live on after her death. She told us her eggs were her ‘babies on ice’, and she took comfort from their safety, in our care, once she knew she would not survive. We promised to look after them, just as we looked after her.”

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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    1. Andrew says:

      Is the widower on board? He will be the father of the child. Does not this concern him too?

      • Cameron Paterson says:

        My understanding is that she wasn’t married

        • Andrew says:

          I see. But it’s still his genetic material. This whole case makes me feel a bit queasy.

        • Luke says:

          It should not be relevant whether he was married to her or not – if the father can be contacted then he should get the final say – period.
          if he is unknown or he approves and the case is truly as described with regard to her wishes upon death then I find it hard to see why they could not proceed with this.

          • Andrew says:

            That must be right. There are strict laws about using somebody’s genetic material and so there should be: not least because of the question of financial responsibility. Judging by what the grandparents are spending that is not a problem here but “tomorrow who knows?” – this year’s millionaire is tomorrow’s pauper.

            In fact I go further than Luke; if he is untraceable or unknown the answer should be No. It should only be Yes if he is known, consents, and is effectively shielded from any possible financial the law of the State where her parents live.

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