A 60-year-old woman who wants to give birth to her deceased daughter’s child has won a legal battle in the Court of Appeal.
The woman’s “much-loved and only” daughter, referred to in court as A, died of bowel cancer in 2011 at the age of 28. She was said to have been desperate to have children and wanted to have IVF treatment, but became too ill: the last five years of her life were spent in hospital.
After A suggested that her ovaries be transplanted into her mother, three of her eggs were removed and stored.
However, the Human Fertilisation and Embryology Authority (HFEA) originally refused to allow the mother, known as Mrs M, to carry out her daughter’s wishes, saying that she had not given explicit written permission.
Now, the Court of Appeal has ordered the HFEA to reconsider Mrs M’s application – meaning that she may now be able to take A’s eggs to an American fertility clinic to be used with donor sperm.
Mrs M and her husband first launched legal action against the refusal in 2014. Their lawyers said that the eggs would perish if the HFEA’s ruling was not overturned.
Jenni Richards QC, speaking for the parents, argued that it was unreasonable to expect A to do more when she was dying from cancer, and that she had never been given the consent form which she supposedly needed to have signed for the procedure to go ahead.
“It would be wrong to use the consent form that she was not given to defeat [her] wishes as expressed on the form she did sign and subsequently in conversation with her mother and friends,” she said.
The three judges presiding over the appeal believed that Mrs M had thought her daughter had signed all the necessary forms.
Catherine Callaghan, speaking for the HFEA, said that it had sympathy for Mrs and Mr M’s loss and understood their desire to keep A’s memory alive. She said: “The law requires us to consider whether there is sufficient evidence of informed consent. After looking at the matter in great detail we decided that there wasn’t, a decision which was supported by the High Court last September.
“Today’s judgement by the Court of Appeal reaffirms the need for informed consent but concludes that there is sufficient evidence of Mr and Mrs M’s daughter’s true wishes.”
However, the judges’ decision this time around only rules that the original refusal was a misjudgement. It does not mean that the parents will definitely be able to seek fertility treatment in the US.
The HFEA said it would reconsider the case as soon as possible.