Husband can use embryo created with late wife, court rules
Progress Educational Trust30 June 2022
A UK widower has won the legal right to use the last remaining embryo that he made with his late wife in a landmark legal case.
Between 2013 and 2018, Ted Jennings and his wife Fern-Maria Choya underwent four rounds of IVF, producing embryos at a fertility clinic in London. After Choya's death in 2019, Jennings wished to use their last remaining frozen embryo to have a child via surrogacy, but because Choya had not provided written consent for posthumous surrogacy before her death, the Human Fertilisation and Embryology Authority (HFEA) could not approve the use of the embryo.
Mrs Justice Theis, ruling in the High Court of Justice, Family division, said that Choya '…had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic,' with regards to posthumous surrogacy, and '…that if that opportunity had been given, that consent by that person would have been provided in writing'.
Due to the couples' experience with infertility, Jennings' and Choya's family both agreed that the outcome is what Choya would have wanted in the event of her death.
Jennings' lawyer, James Lawford Davies, a partner at Hill Dickinson law firm, said: 'I am delighted that the court has found in Ted's favour and that he can now proceed with surrogacy treatment. It was clear that this is what Fern would have wanted and this very thorough judgment allows her wishes to be respected'.
Justice Theis further concluded that the HFEA should review its consent forms with regards to a death of a partner and should clarify what the outcome would be for any remaining embryos.
This is the first case of posthumous surrogacy in the UK where the father has been granted legal permission to use any embryos made with his deceased partner's egg.
New research carried out by Ipsos and commissioned by the Progress Educational Trust (PET), the charity that publishes BioNews, investigated the opinion of UK adults on issues including posthumous conception. Sixty percent of respondents agreed that it should be permissible for a deceased person's frozen egg or sperm to be used by their partner to establish a pregnancy. Overall, the responses varied significantly in terms of age, gender or region but the '…support for posthumous conception was strongest when the person wishing to conceive was the husband, wife or partner of the deceased.'
Sources and References
22 June 2022. Guardian
Widower wins right to have baby using embryo created with his late wife
23 June 2022. Metro
Widower wins right to use embryo created with late wife to have a baby
23 June 2022. Independent
Widower wins right to use embryo of late wife to have baby using surrogate
23 June 2022. Hill Dickenson
High Court rules in favour of widower Ted Jennings in novel surrogacy application case
22 June 2022. Courts and Tribunals Judiciary
Jennings -v- HFEA
22 June 2022. Progress Educational Trust
Fertility, Genomics and Embryo Research: Public Attitudes and Understanding
22 June 2022. Ipsos
Two-thirds of people believe the NHS should provide fertility treatment
Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.