‘A 60-year-old woman who wants to use her dead daughter’s frozen eggs to give birth to a grandchild has won a legal battle over what constitutes medical consent.
The court of appeal has ordered the Human Fertilisation and Embryology Authority (HFEA) to reconsider the application, opening the way for fertility treatment in the United States.
The woman, whose daughter died of bowel cancer in 2011, had asked three judges to allow her to carry out the dying wishes of her “much-loved and only child”. The family have remained anonymous; the court identified the mother as Mrs M.
Her daughter, who was 28 when she died, spent most of the last five years of her life in hospital. She wanted to have IVF treatment but became too ill. At one stage, she suggested having her ovaries transplanted into her mother. Three eggs were eventually removed and stored.
The legal problem the HFEA confronted, the judgment explained, “was that while [the daughter] consented to treatment for egg removal and storage (including storage after her death) and also to the use (other than for research purposes) of her eggs after her death, she never completed any form giving details of the precise use that is now proposed”.
Lawyers for the mother and her husband, referred to only as Mr M, said that if they did not overturn the refusal for treatment, the eggs would be allowed to perish.
Giving judgment, Sir James Munby, who is president of the family division of the high court, Lady Justice Arden and Lord Justice Burnett granted the parents’ appeal. Neither Mr or Mrs M were in court for the ruling.’
‘The judges heard that the daughter, referred to only as A, was desperate to have children and asked her mother to “carry my babies”. Her parents launched legal action against the HFEA’s refusal in September 2014 to allow them to take their daughter’s eggs to a US fertility treatment clinic to be used with donor sperm.’
‘The court’s role, however, was not to decide whether it would have permitted the mother to undergo fertility treatment using her deceased daughter’s eggs and donated sperm.
Its task was to determine whether Mr Justice Ouseley erred in concluding that the HFEA’s statutory approvals committee acted lawfully and rationally in exercising its broad discretion to refuse to authorise export of the frozen eggs.
Giving the court’s ruling, Lady Justice Arden said the challenge succeeded at three levels: “First, there was on the face of it the misstatement of certain of the evidence about [the daughter’s] consent by the [HFEA] committee.
“Second, even if what the committee meant was that there was a lack of effective consent because the appellants could not show that [the daughter] received information on certain matters, the decision was flawed because the committee pointed to the lack of certain evidence without explaining why [she] needed to receive that information and give that consent.
“The third level is that the committee did not ask the prior question of what information the Human Fertilisation and Embryology Act required to be given to [the daughter] in the circumstances of her case.”
The judge said the decision must be set aside and remitted to the statutory approvals committee of the HFEA for further consideration of the export application.’
Related Articles:
Couple win legal battle against ruling on dead daughter’s eggs- The Guardian
Woman wins appeal to use dead daughter’s eggs- BBC News
Medicine is Alive Everywhere 