High Court allows appeal for grandmother to use dead daughter’s frozen eggs

The High Court has allowed a mother, ‘M’ and her husband to take their case regarding the use of their deceased daughter’s frozen eggs to the Court of Appeal.

Background to the case

In 2003, the daughter (‘AM’) was diagnosed with bowel cancer at the age of 23. In 2008, she had her eggs frozen, fearing that cancer treatment might leave her unable to have children. AM made it clear that she hoped that her eggs would be ‘stored for later use’ in the event of her death, as documented in the completion and signing of a frozen sent form. A second form requesting instructions on what should actually happen to her eggs should she die was never completed. M detailed that she and AM had numerous discussions about whether the M should become a surrogate for the child. At one point it had been intended that M become the surrogate for the child and AM would raise him or her. AM also had numerous discussions with her mother where she set out her intention that her eggs be used. In 2009, AM lost her battle with cancer and passed away.

Permission to appeal

Last June, Mr Justice Ouseley upheld the decision of the authorities and said that there had been no breach of the family’s human rights. He acknowledged that AM would have been devastated to learn that her eggs would not be used but refused M’s application to take her only child’s eggs to a US clinic to be fertilised with donor sperm. The Human Fertilisation and Embryology Authority had previously said that AM’s eggs could not be removed from storage because AM had not given her full written consent before her death that the eggs could not be used.

M sought permission to appeal the decision and take the case to the Court of Appeal.

On 24 February 2016, Lord Justice Treacy and Lord Justice Floyd gave the couple permission to appeal the decision, holding that there was an arguable case with a real prospect of success although Lord Justice Treacy did state that the case papers had left him doubtful as to whether there would be “sufficiently strong” reasons to allow the challenge to continue and be successful.

Commentary

It is worth noting that some of the headlines have been a little misleading in suggesting that the mother has ‘won’ her case. She has ‘won’ permission to appeal but it will be for the Court of Appeal to decide whether M can use AM’s embryos. At the time of writing, no date had been fixed for the Court of Appeal hearing but we will return with an update on what is sure to be a very interesting judgment.

Read more here

Update 02/11/2016: The grandmother won the appeal in June 2016