header-logo header-logo

Posthumous conception appeal granted

05 July 2016
Issue: 7706 / Categories: Legal News
printer mail-detail

A mother who wished to carry her deceased daughter’s baby was unlawfully refused permission, the Court of Appeal has held.

R (on the application of IM and another) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 centred on whether the Human Fertilisation and Embryology Authority (HFEA) was in breach of public law when it refused to approve the use of the appellant’s deceased daughter’s frozen eggs.

The woman, Mrs M, and her husband, wished to export the eggs of their late daughter, A, to the US, where doctors were due to create an embryo with anonymous donor sperm and implant it in her womb. Once born, the child would be brought up as the woman’s grandchild.

Their daughter had died in her 20s of cancer, and had signed a form agreeing to the eggs being used after her death. She wished her mother to carry her baby and believed all the paperwork was complete for this to happen. However, the HFEA refused permission to export the eggs after a UK clinic refused to proceed, on the basis there was insufficient evidence of the daughter’s wishes.

Delivering judgment, Lady Justice Arden said the HFEA had erred in its assessment of the evidence. She said it was unreasonable to expect the daughter to have considered the prospect of export or set out in detail matters which she expected her parents to decide, such as choice of sperm donor.

Arden LJ said: “A told her cousin in 2009 that she had already got her babies: ‘They are just on ice’… Having realised she would not survive, she wanted her mother to carry the child. It was very important to her that her eggs should not perish.”

Arden LJ also stated that the HFEA Committee, in treating the arrangement between A and her mother as simply a surrogacy arrangement, "failed to consider the possibility that A consented to her mother's use of the eggs for the purpose of bearing her child on the basis that her parents or her mother took all the detailed steps and brought up the child themselves".

Natalie Gamble, solicitor for the appellants, said: “This case is an incredibly sad story, and we would urge anyone storing eggs or sperm to record as clearly as possible in writing what they intend to happen if they die.

“However, the reality is that the specifics of the future are not always known, and [this] ruling importantly establishes that issues of consent have to be considered in their full context.”

The ruling means the HFEA must now consider the application again, taking into account the court’s decision.

Issue: 7706 / Categories: Legal News
printer mail-details

MOVERS & SHAKERS

Gilson Gray—Paul Madden

Gilson Gray—Paul Madden

Partner appointed to head international insolvency and dispute resolution for England

Brachers—Gill Turner Tucker

Brachers—Gill Turner Tucker

Kent firm expands regional footprint through strategic acquisition

Quinn Emanuel Urquhart & Sullivan—William Charles

Quinn Emanuel Urquhart & Sullivan—William Charles

Financial disputes and investigations specialist joins as partner in London

NEWS
Ministers’ proposals to raise funds by seizing interest on lawyers’ client account schemes could ‘cause firms to close’, solicitors have warned
Is a suspect’s state of mind a ‘fact’ capable of triggering adverse inferences? Writing in NLJ this week, Andrew Smith of Corker Binning examines how R v Leslie reshapes the debate
The Ministry of Justice (MoJ) has not done enough to protect the future sustainability of the legal aid market, MPs have warned
Writing in NLJ this week, NLJ columnist Dominic Regan surveys a landscape marked by leapfrog appeals, costs skirmishes and notable retirements. With an appeal in Mazur due to be heard next month, Regan notes that uncertainties remain over who will intervene, and hopes for the involvement of the Lady Chief Justice and the Master of the Rolls in deciding the all-important outcome
After the Southport murders and the misinformation that followed, contempt of court law has come under intense scrutiny. In this week's NLJ, Lawrence McNamara and Lauren Schaefer of the Law Commission unpack proposals aimed at restoring clarity without sacrificing fair trial rights
back-to-top-scroll