“They are never going to let me leave this hospital, mum,” her daughter was quoted in court as saying before she died, according to court documents. “The only way I will get out of here will be in a body bag.
“I want you to carry my babies. I didn’t go through I.V.F. to save my eggs for nothing. I want you and dad to bring them up; they will be safe with you. I couldn’t have wanted for better parents. I couldn’t have done without you.”
After a “long and brave battle,” her attorneys said, an independent regulator that had denied Mrs. M’s request to take her daughter’s eggs must now reconsider its decision, taking into account the recent ruling.
In a case legal experts have called rare, the United Kingdom’s Court of Appeal ruled Thursday that there was “sufficient evidence” that the daughter, referenced as “A,” wanted her mother to give birth to and raise her child.
Now her mother wants to use the frozen eggs — and sperm from a donor — to do just that.
“Naturally we are delighted with the decision, which follows a long and brave battle to honor the wishes that A clearly expressed to her mother before she died,” her attorneys, with Natalie Gamble Associates, said in a statement. “This case is an incredibly sad story, and we would urge anyone storing eggs or sperm to record as clearly as possible in writing what they intend to happen if they die. However, the reality is that the specifics of the future are not always known, and today’s ruling importantly establishes that issues of consent have to be considered in their full context.
“We are delighted that A’s clearly expressed wishes have finally been recognized, giving effect to one of the U.K.’s most the fundamental legal principles on assisted reproduction: that the person who has given eggs or sperm should decide what happens to them.”
The judgment superseded a High Court ruling that sided with the Human Fertilisation and Embryology Authority, an independent regulator that said in 2014 that the frozen eggs could not be released because the daughter had never provided written consent.
But the agency must now revisit the case.
“The law requires us to consider whether there is sufficient evidence of informed consent,” the agency said Thursday in a statement, according to BBC News. “After looking at the matter in great detail we decided that there wasn’t, a decision which was supported by the High Court last September.
“Today’s judgment by the Court of Appeal reaffirms the need for informed consent but concludes that there is sufficient evidence of Mr. and Mrs. M’s daughter’s true wishes.”
The U.K.’s Human Fertilisation and Embryology Authority put policies and procedures in place years ago that govern egg sharing, which “involves a woman having fertility treatment and donating some of her eggs in return for benefits in kind in the form of discounted treatment services, usually a reduced treatment fee.”
And U.K. law is strict when it comes to posthumous reproduction — requiring a donor’s informed consent.
Richard Vaughn, founder of the Los Angeles-based International Fertility Law Group Inc., told The Washington Post that although there’s no federal law in the U.S. that determines how a deceased person’s gametes (or reproductive cells) can be used, 11 states have addressed when the use of gametes for posthumous conception is recognized.
“I think it’s fascinating,” he said. “The technology that exists for assisted reproduction creates opportunities that didn’t exist before for family formation and for family building and for extending your procreative possibilities.
“In the U.S., we view things more along the lines of the right to procreate, and assisted reproduction is an extension of the right to procreate. In Europe, the prevailing notion is what’s in the best interest of the child.”
During a years-long battle with bowel cancer, “A” had frozen her eggs to ensure that she could still have children of her own, but in 2011, the 28-year-old died from her disease, according to court documents.
She signed medical forms saying she wanted her eggs to be stored “for later use” and did not want them to be “allowed to perish,” but she was not given a form to fill out indicating what she would want to happen to them if she died, according to the documents.
However, her parents said, she discussed her wishes with them.
After she died, her parents, “Mr. and Mrs. M,” wanted to do IVF but were told by the clinic in London where the eggs were being stored that their daughter had not signed the proper forms.
They then approached the Human Fertilisation and Embryology Authority to have the eggs moved to a clinic in New York that agreed to do it, but the regulatory agency turned them down.
Last year, the parents challenged the HFEA’s decision in the High Court, which agreed that there was not enough evidence to know what their daughter really wanted. So, earlier this year, the couple appealed.
In last week’s decision, appeals judge Lady Justice Arden wrote:
First, there was on the face of it the misstatement of certain of the evidence about A’s consent by the Committee. Second, even if what the Committee meant was that there was a lack of effective consent because the appellants could not show that A received information on certain matters, the Decision was flawed because the Committee pointed to the lack of certain evidence without explaining why A needed to receive that information and give that consent. The third level is that the Committee did not ask the prior question of what information the HFE Act required to be given to A in the circumstances of her case.
Mohammed Taranissi, who runs the Assisted Reproduction & Gynecology Center in London, told ITV News at the time that the case was unusual, saying, “I have never heard of a surrogacy case involving a mother and her dead daughter’s eggs.”
Vaughn, with the International Fertility Law Group, and Michelle Keeyes, a partner with Reproductive Law Center in California, both told The Post last week that indeed it is rare but that they have seen cases in the United States in which parents or spouses have used eggs or embryos posthumously.
As for the woman in England, she said she has “no doubt” this is what her daughter wanted.
“I have absolutely no doubt in my mind that, as far as A was concerned, her eggs held a life force and were living entities in limbo waiting to be born,” Mrs. M said in a statement last year, according to the Guardian.
“She was clear that she wanted her genes to be carried forward after her death. She had suffered terribly, and this was the one constant in her remaining years from which she never wavered.”