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Judgment reserved over frozen eggs

Published 07/05/2015

Dr Mohammed Taranissi believes the case is unprecedented
Dr Mohammed Taranissi believes the case is unprecedented

A judge is taking time to decide whether a mother can use her dead daughter's frozen eggs in a bid to give birth to her own grandchild.

The judge reserved judgment after a one-day hearing at London's High Court in what is believed to be the first case of its kind.

The unnamed 59-year-old mother and her husband, 58, who were referred to as "Mr and Mrs M", are challenging an independent regulator's refusal to allow them to take the eggs of their "much-loved and only child" to a US fertility treatment clinic.

Mr Justice Ouseley was told the cancer victim daughter, "A", never wavered in her wish that her mother should carry her child after her death and would have been "devastated" if she had known her eggs could not be used.

Mrs M said in a statement A had "suffered terribly" but was clear that "she wanted her genes to be carried forward after her death" and regarded the eggs as "living entities in limbo waiting to be born".

Her parents want to take the eggs to New York, where a clinic has indicated it is willing to provide fertility treatment at an estimated cost of up to £60,000.

The case came to court after the Human Fertilisation and Embryology Authority (HFEA) refused to issue a "special direction" allowing the eggs to be removed from storage at IVF Hammersmith, which is based within Hammersmith Hospital in West London, and exported to America.

The HFEA's statutory approvals committee (SAC) decided in 2014 there was insufficient evidence to show that the daughter wanted the eggs used in the way her parents suggested after her death.

She had completed a form which gave consent for the eggs to be stored for use after her death.

But she failed to fill in a separate form which indicated how she wished the eggs to be used, the court heard.

Jenni Richards QC, appearing for the parents, asked the judge to rule the decision unlawful and a "disproportionate interference" with the family's human rights.

She argued the HFEA had taken too rigid an approach and placed "unreasonable" emphasis on the fact that the daughter did not sign the additional form specifying the use of her eggs.

Ms Richards described how A, who was part of a "close and happy family", died of bowel cancer in June 2011 at the age of 28.

She had been diagnosed at the age of 23 and had no boyfriend in her last years.

Concerned about the impact of her illness and its treatment, she initially had her eggs frozen in the hope that she herself could have children in the future.

H aving her own family was incredibly important to her, said Ms Richards.

The family's right to have their private and family life protected under Article 8 of the European Convention on Human Rights had been violated.

The HFEA had taken a "too restrictive" approach to the use of its powers under the 1990 Human Fertilisation and Embryology Act, even though the daughter had made her wishes clear to her mother and others, said Ms Richards.

In 2009 a cousin had announced to A that she was pregnant and A had told her: "I have already got my babies. They are on ice."

Mrs M stated her daughter had told her as her health deteriorated: "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.

"I want you and dad to bring them up, they will be safe with you.

"I couldn't have wanted for better parents. I couldn't have done this without you."

Mrs M's statement added: "I have absolutely no doubt in my mind that, as far as A was concerned, 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.

"She had suffered terribly and this was the one constant in her remaining years from which she never wavered."

An aunt had also said A had told her that she wanted her mother, and no one else, to be her surrogate - "and was quite adamant she should do so post death as well", said Ms Richards.

Ms Richards told the judge A's parents believed they had an "unchallengeable" and fundamental right under Article 8 "to bring into the world a child created from A's eggs to be brought up as their child" in honour of their daughter's wishes.

She urged the judge to quash the HFEA's decision and order the authority to reconsider the case.

But Catherine Callaghan, appearing for the HFEA, argued its decision was neither irrational nor disproportionate.

Ms Callaghan said: "One has enormous sympathy for the claimants' tragic loss of their only child and indeed the difficult situation in which they now find themselves.

"There may be a natural human temptation to give the claimants what they are seeking, but the court should be very reluctant to assume that, because this is the proposed course the claimants want, it must inherently follow that it was also what the daughter wanted in the absence of clear evidence to that effect."

Ms Callaghan said there was no clear evidence that A had expressed the wish for her mother to carry her child "in the event of her death" and her eggs taken abroad for that purpose.

There was also insufficient information as to whether A had fully understood the implications of such wishes and their implications for the mother - and any child that might eventually be born.

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