Mother begins High Court challenge for dead daughter's eggs

A 59-year-old woman has initiated an unprecedented legal battle to take possession of her deceased daughter's eggs in order to act as a surrogate for her own grandchild. 

The woman - referred to as 'Mrs M' for legal reasons - appeared at the High Court in London on 7 May to challenge the Human Fertilisation and Embryology Authority's (HFEA) repeated refusal to allow her and her husband to take their daughter's eggs to the USA for fertility treatment (see BioNews 792 and 793). 

The couple's only daughter - referred to as 'A' - was diagnosed with bowel cancer at the age of 23. In 2008, she stored three eggs at IVF Hammersmith, based within Hammersmith Hospital in west London. Initially she had hoped that she could become pregnant after her cancer treatment. However, after learning that her cancer was terminal, Mrs M claims that A asked for her frozen eggs to be fertilised by donor sperm and implanted into her own mother's womb. 

Mrs M is recorded as saying that her daughter, who died in 2011, told her, '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.' 

No clinic in the UK has agreed to perform the treatment, but a fertility centre in New York is prepared to use donor sperm to fertilise A's eggs and implant them into Mrs M's womb at a cost of £60,000. 

However, although A had completed a form that gave consent for the eggs to be stored for use after her death, she failed to provide written consent that specified exactly how she wished the eggs to be used. Minutes from an HFEA committee meeting state that the 'strongest and only evidence' of A's wish was a reported conversation with her mother in 2010.

The HFEA has therefore ruled that there is there is insufficient evidence to support the claim that A wanted her mother to act as a surrogate. Based on this information, the HFEA's Statutory Approvals Committee (SAC) refused to issue a 'special direction', which would lawfully allow the eggs to be removed from storage and exported to the USA. The HFEA has refused Mrs M's requests on three occasions, the most recent being in August 2014.

Jenni Richards QC appeared for the parents. She argued that 'disproportionate and unreasonable' emphasis has been placed by the HFEA on the fact that A did not sign the additional form specifying the use of her eggs. She also argued that the family's right to have their private and family life protected under Article 8 of the European Convention on Human Rights had been violated by the 'too restrictive' way the HFEA had used its powers. 

Catherine Callaghan appeared for the HFEA and argued that its decision was neither irrational nor disproportionate. She also maintained that without the appropriate paperwork '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'.

She also explained that given Mrs M's age, the risks of miscarriage and other complications of pregnancy are increased. Ms Callaghan told the High Court, 'The mother has acknowledged that any pregnancy could be life threatening. It is (also) possible that if the daughter had been informed of these risks she would perhaps not have been willing to use her mother as a surrogate,' revealing concerns that there was also insufficient evidence that A fully realised the implications of what she had asked her mother to do. 

Although there are some cases of mothers acting as surrogates for their daughters, this is considered to be the first surrogacy case in the UK involving eggs from a deceased daughter. Others have also raised ethical concerns about raising a child whose biological mother has already deceased, and the complications of being both a legal parent and grandparent.

The judge, Mr Justice Ouseley, reserved his judgment, which is expected in the near future.