A widower is seeking High Court approval to use a single remaining embryo he created with his deceased wife, for which he has no written consent.

Ted Jennings and his wife, Fern-Marie Choya, underwent multiple rounds of IVF before her death in 2019. Choya conceived twins by IVF but died from a uterine rupture 18-weeks into the pregnancy. The couple had one remaining frozen embryo and Jennings wants to use this in treatment with a surrogate. 

Representing Jennings, Jenni Richards QC told the judge 'The evidence is that Ms Choya would have wanted Mr Jennings to be able to use their partner-created embryo in treatment with a surrogate in the event of her death.' She argued, however, that Choya 'had no opportunity, through no fault of her own, to provide that consent in writing'.

The Human Fertilisation and Embryology Authority (HFEA), which regulates IVF treatment, states that without written consent it is not lawful that an embryo be used posthumously. 

Prior to their IVF treatment, Jennings gave written consent for the use of the embryos in the event of his death. His wife was not provided with the equivalent question on her consent form, and thus, did not give her consent for this. Instead, her consent form indicated she should speak to the clinic about this option.

Jennings and Choya undertook three cycles of IVF treatment in 2013 and 2014 but did not become pregnant. Choya conceived naturally in 2015 and 2016, but both pregnancies ended in miscarriage. The couple underwent further IVF cycles in 2017 and 2018, the latter of which resulted in her pregnancy with twins.

Representing the HFEA, Kate Gallafent QC acknowledged that they were sympathetic to Jennings' application but believed the case should be dismissed. 'It is common ground between parties that Ms Choya did not provide written consent to the embryo being used by Mr Jennings in treatment with a surrogate in the event of her death'. She said that the HFEAs 'sole interest' was to 'promote compliance' with a 'statutory scheme'.

The judge will provide a written ruling on this case soon.

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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.