Woman (59) begins legal battle for dead daughter's frozen eggs so she can become pregnant with her own grandchild
Published 08/05/2015 | 13:40
A mother has launched a legal battle for possession of her dead daughter's frozen eggs so that she can become pregnant with her own grandchild.
A High Court judge was told how the daughter, whilst "suffering terribly" from terminal cancer, never wavered in her wish that her mother should carry her child after her death and would have been "devastated" if she had known her eggs could not be used.
In what may be the first case of its kind in the world, the 59-year-old mother, referred to as "Mrs M" for legal reasons, is challenging an independent regulator's refusal to allow her and her husband, 58, to take her daughter's eggs to a US fertility treatment clinic.
The couple say it was the dying wish of their daughter, an only child who died in 2011 of bowel cancer while in her late 20s, that her eggs be fertilised by donor sperm and implanted into her own mother's womb.
The daughter initially had her eggs frozen after being diagnosed with cancer in the hope that she herself could have children in the future, but lost her battle for life.
Her parents want to export the eggs to New York, where a clinic has indicated it is willing to provide fertility treatment at an estimated cost of up to £60,000.
Jenni Richards QC, appearing for Mrs M, said the family's identity should be kept secret because the case raised "very delicate, sensitive and personal issues" and in particular it was important to protect the identity of "an as yet unborn child".
Ms Richards said the daughter,"A", had grown up in "a close and happy family unit" and having her own family was incredibly important to her.
But she was diagnosed with bowel cancer at the age of 23 and had no boyfriend in her last years.
Ms Richards said: "From the outset one of the issues that troubled A were the implications of her illness in terms of her ability to have a child."
The QC read from a statement from Mrs M in which she described how her daughter told her she knew she was going to die.
She said she wanted her mother to carry her child and for both her parents to bring the child up, knowing it would be "safe".
But the Human Fertilisation and Embryology Authority (HFEA) refused to issue a "special direction" allowing the eggs to be removed from storage in London and sent to the US.
The HFEA's statutory approvals committee (SAC) made the 2014 refusal decision saying there was insufficient evidence to show that the daughter wanted her mother to use donor sperm to carry her child.
Mrs M is asking Mr Justice Ouseley, sitting at London's High Court, to rule the decision was unlawful and an interference with the family's human rights.
The SAC says there was no clear, written consent and it was entitled to use its discretion to refuse to issue a special direction, without which it would be unlawful for export of the eggs to go ahead.
A completed a form which gave consent for the eggs to be stored for use after her death, but crucially, failed to fill in a separate form which indicated how she wished the eggs to be used. This technically meant her consent became invalid.
The application for permission to export the sperm was made to the HFEA by IVF Hammersmith, which is based within Hammersmith Hospital in West London and currently storing the eggs.