High Court rules against mother wanting to use her deceased daughter's eggs

The High Court has ruled that a decision not to allow a mother to take her deceased daughter's eggs for fertility treatment overseas was lawful.

The mother sought to challenge the legality of the final decision of the HFEA, which had refused three times to give permission to export the eggs, stored by her daughter in 2008 prior to her death in 2011 following bowel cancer, to the USA for use in fertility treatment (reported in BioNews 801). Its final decision was made in August 2014.

The HFEA's Statutory Approvals Committee said there was insufficient evidence that the daughter had consented to the eggs being used by her parents in such a way (see BioNews 792). Although the daughter had given express permission for the eggs to be preserved after her death, she had not specified what was to happen to them.

The mother, referred to as Mrs M, argued that her daughter, AM, had expressed the strong wish that if she should die, one or more of her eggs should be implanted in her mother and that any children born would be raised by her parents. Mrs M said that she felt certain that to her daughter the 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 said.

The HFEA considered, however, that AM's precise wishes about what would happen to the eggs after her death remained unclear. It observed that AM could have taken a number of steps to evidence her wish that her mother should carry the eggs fertilised by an anonymous sperm donor, but had not. These steps included the use of witnesses or informal discussions with doctors, leaving a note or seeking further information or counselling.

Although sympathetic, the HFEA concluded that the proposed use of the eggs after her death was not 'exactly what [AM] had wished for'.

Refusing the claimants' application, Mr Justice Ouseley said that the HFEA was entitled to reach the conclusion that it did and did so in the correct manner. The HFEA did accept Mrs M's evidence, but that although it was clear AM had wanted her mother to act as a surrogate when she was alive, it was not clear that this is what she wanted after her death.

The judge clarified that although completion of the relevant forms would have resolved the matter, the absence of the correct consent forms was 'not fatal' to a decision in the mother's favour. 'It was instead the fact that so many issues of importance were never discussed, and resolved, when there had been time for them all to be discussed with the mother and others, and resolved,' he said.

The court also held that a right to private and family life did not cover the right to use someone's gametes who had not consented to their use.

Unless the decision is successfully appealed, the eggs will be destroyed after the storage period expires. 'We know that was absolutely what she did not want to happen', Mrs M said in a statement.

Natalie Gamble, a lawyer representing the claimants in the case, said that AM had not realised that she needed to specify in writing what she wanted to happen to her eggs after death.

She said: 'The case shows how critical it is that clinics (and patients) who store eggs, sperm or embryos before cancer treatment are absolutely clear about what should happen after their deaths, making sure their wishes are not only expressed but recorded explicitly in writing.'