Mother loses daughter's eggs bid
A mother has lost a High Court battle in her bid to use her dead daughter's frozen eggs to give birth to her own grandchild.
A judge was told the cancer victim daughter, who can only be referred to as "A" for legal reasons, was desperate to have children and asked her mother to "carry my babies".
The unnamed 59-year-old mother and her husband, 58, who were referred to as "Mr and Mrs M", challenged 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 to be used with donor sperm.
The Human Fertilisation and Embryology Authority (HFEA) said the eggs could not be released from storage in London because A did not give her full written consent before she died at the age of 28 in June 2011.
Mr Justice Ouseley, sitting in London, was told A would have been "devastated" if she had known her eggs could not be used.
But the judge ruled the HFEA had been entitled to find the daughter had not given "the required consent". He declared there had been no breach of the family's human rights.
He said: "I must dismiss this claim, though I do so conscious of the additional distress which this will bring to the claimants, whose aim has been to honour their daughter's dying wish for something of her to live on after her untimely death."
Refusing permission to appeal against his ruling, the judge said he had "much sympathy" for the parents but was not persuaded an appeal would have any prospect of success.
It is still open to the couple to ask the Court of Appeal itself to hear their case, if they so decide.
The judge ordered them to pay £10,000 towards the HFEA's legal costs.
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.
A HFEA spokeswoman said: "This is a very sad case, and the ruling must be heart breaking 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.
"The judge has decided that, as distressing as this is for the couple involved, the committee's decision was correct."
In a one-day hearing in May, Mrs M told the court that A had "suffered terribly" but was clear "she wanted her genes to be carried forward after her death" and regarded the eggs as "living entities in limbo waiting to be born".
She had her eggs frozen following her bowel cancer diagnosis at the age of 23, and asked her mother to act as surrogate hoping she would recover.
Later she accepted she would never see her child, and she died in June 2011 aged 28.
Her parents want to take the eggs to New York, where a clinic has indicated it is willing to provide fertility treatment with donor sperm at an estimated cost of up to £60,000.
The case came to court after the 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 the daughter wanted the eggs used in the way her parents suggested after her death.
The daughter completed a form giving consent for her 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 HFEA was wrong not to allow her parents access to the eggs. She argued it was a "disproportionate interference" with their Article 8 "right to family life" safeguarded by the European Convention on Human Rights.
The QC accused the HFEA of taking 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.
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.
A was part of a "close and happy family", and having her own family was incredibly important to her.
Ms Richards said: "She told (hospital) staff that if her womb was affected she wouldn't want to be woken up from surgery," she said.
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 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.
But the judge said he accepted the arguments of Catherine Callaghan, appearing for the HFEA.
Ms Callaghan told the court: "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.