Cambridge Family Law Practice

A bereaved woman cannot use her deceased daughter’s gametes to conceive a grandchild, the family court has ruled.

The case concerned a young woman, referred to as ‘N’ in the judgement, who had been diagnosed with breast cancer. Before beginning treatment, she agreed to have ova frozen, because chemotherapy can damage fertility. She discussed surrogacy with her mother, ‘G’, but did not complete any of the forms required by Schedule 3 of the Human Fertilisation and Embryology Act, and therefore did not provide official consent for the use of her ova in surrogacy.

Sadly, treatment was unsuccessful and N passed away. Afterwards G applied for permission to use N’s eggs with a surrogate and sperm donor, hoping for the birth of a grandchild that she would raise. She argued that, even though her daughter had not provided formal consent to the posthumous surrogacy, Article 8 of the European Convention on Human Rights meant her daughter had a right to have her ova utilised. Article 8 protects the right to privacy and family life, and the discussions between G and her daughter about possible surrogacy, G insisted, had amounted to a “joint parental project”.

In addition, G suggested, her daughter had had no reasonable chance to formally consent to G’s plan to use her ova with a surrogate mother.

But G’s case failed to convince Sir Andrew McFarlane. As President of the Family Division, Sir Andrew is the most senior family law judge in England and Wales. Referring to records of N’s meetings with her medical team, he noted that:

“There is no reference in the note to N asking about her frozen eggs or the possibility of surrogacy. Whilst it is important to note that the professionals did not apparently raise the issue themselves, the absence of anything from N on the topic certainly does not support a finding that she had formed a settled wish as to the posthumous use of her eggs.”

In addition, since N had died, she no longer held any rights under the European Convention on Human Rights, or its UK implementation, the Human Rights Act 1998. In Sir Andrew’s words:

“…any claim based on …unfairness to [N] would not survive her death.”

The President concluded:

“I reject the submission that, if it can be established on the evidence, the existence of a joint parental project between individual A, whose gametes are stored, and another individual, B, who is not a partner or spouse of individual A, entitles B, on the death of A, to assert that B’s Art 8 rights have in some manner been breached because the goal of the joint parental project cannot be realised.”

Jeremy Ford, one of the partners here at Cambridge Family Law Practice comments: “This is obviously a very sad case in which a bereaved parent fought very hard for what she thought was ‘right’. This case does show that – whilst not always possible – it is important for these sensitive conversations to be considered when a patient is receiving treatment that may affect their fertility, with the necessary formalities being addressed promptly.”

Read the full judgement here.