Widower allowed to use embryo for surrogacy despite HFEA objection

A UK court has granted a widower permission to pursue fertility treatment using an embryo created with his late wife.

The applicant, referred to as EF, sought permission from the court to use the last remaining embryo created with his wife before her death to have a child through surrogacy. The Human Fertilisation and Embryology Authority (HFEA) opposed the application on the basis that EF's wife, referred to as AB, did not give written consent for the posthumous use of embryos in treatment. However, this was not an option on the consent forms AB signed, and EF argued that his wife would have consented given the opportunity.

'The requirement of consent is the cornerstone of the HFEA 1990 which reflects the importance of personal autonomy and giving effect to an individual’s wishes,' Mrs Justice Theis said in her judgment, delivered in private. 'AB was unable to record her consent to this treatment as she was not given the opportunity to do so through no fault of her own... The insistence on written consent would, in the particular circumstances of this case defeat rather than promote this objective of the legislative scheme.'

The couple created embryos through fertility treatment in 2017, seeking to have a sibling for their eldest child. They had a second daughter in 2018, but both mother and baby died later that year. EF said he and AB had planned to use the remaining embryo to have a third child. Following his wife's death, EF was notified by the clinic that the embryo would be destroyed if he did not make alternative plans.

He told the Telegraph, 'I couldn't just let it perish. I believe that every living being has a soul – which enters the embryo at the point of conception. I had the means and the capacity to provide a loving home, and I had to do everything to make that life possible.'

AB and EF were both members of what the court referred to as 'J religion', which includes the sanctity of life as a central doctrine.

EF argued that insisting on written consent in this case would breach his Article 8 right to private and family life, under the Human Rights Act 1998, depriving him of the opportunity to have a second child genetically related to him and his wife and to give his daughter a biological sibling related to her mother. This was important due to the family's background and heritage.

Mrs Justice Theis concluded that the consent requirements outlined in Schedule 3 of the HFEA 1990 'should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Art 8.' She said, 'This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount.'

Mrs Justice Theis decided a similar landmark case in a widower’s favour in 2022 (see BioNews 1148) however courts have been less willing to allow applications brought by the deceased person's parents (see BioNews 1169 and 1264).