Application to use eggs for posthumous conception refused

The High Court has rejected a woman's application to use her deceased daughter's eggs for posthumous conception through surrogacy.

The applicant, known as G, argued that her daughter, known as N, had expressed her wishes for G to use her frozen eggs in surrogacy to have and raise a child, prior to her death from cancer in 2023. However, N did not give written consent for the posthumous use of her eggs.

Sir Andrew McFarlane, president of the family division of the High Court of England and Wales, stated in his judgment, 'Despite my regret at being the cause of such further sadness, and despite great empathy for her position, my conclusion is that the application fails on both the facts and the law and that it must be refused.'

N froze her eggs after a breast cancer diagnosis in 2022. The clinic advised as part of standard protocol that if she wished for the eggs to be used posthumously, she should complete additional consent forms, which was not done. In May 2023, when N's condition worsened, G stated that N asked her 'if anything happens to me will you take care of my children.' The day before her death, N told her 'Mum, I want a surrogate mother' when discussing her eggs. On the same day, N's palliative care consultant noted 'I cannot have a discussion with her regarding the fact that she is moving to end of life care. She hasn't got capacity.'

The Human Fertilisation and Embryology Authority (HFEA) and Secretary of State for Health and Social Care were granted permission to intervene in the case. Neither party contested G's account, but both opposed the application. They argued that the Human Fertilisation and Embryology Act 1990 was clear that written and informed consent must be given for posthumous use of gametes. The HFEA argued that even if the court looked beyond the statute, there was insufficient evidence to establish that N would have given consent.

In the absence of written consent, G sought to rely on the Human Rights Act 1998 and the European Convention of Human Rights (ECHR). G argued that her conversations with N were evidence that they were engaged in a 'joint parenting project', therefore G's Article 8 rights to a private and family life were engaged.

Previous cases where the courts have allowed the use of sperm and embryos posthumously in the absence of written consent have involved a surviving partner undergoing fertility treatment with the deceased (see Bionews 1148), however an application by parents was recently allowed in India (see BioNews 1260).

Mr Justice McFarlane dismissed the application on the facts, finding that there was insufficient evidence to conclude that N had given informed consent. He further concluded that even if these factual findings were incorrect, G's legal argument would not succeed. He said: 'I reject the submission that, if it can be established on the evidence, the existence of a joint parental project between individual A, whose gametes are stored, and another individual, B, who is not a partner or spouse of individual A, entitles B, on the death of A, to assert that B's Art 8 rights have in some manner been breached because the goal of the joint parental project cannot be realised. Rights under Art 8 attach to individuals and not to concepts or joint endeavours.'