IM and MM v The Human Fertilisation and Embryology Authority

The High Court rejected an attempt by a woman to become pregnant using her deceased daughter’s eggs.  Mr Justice Ouseley dismissed a claim for judicial review brought by the parents of a young woman who had frozen her eggs prior to her death from cancer at age 28. They sought to challenge the decision of the Human Fertilisation and Embryology Authority (the UK’s independent regulator of fertility treatment) not to authorise export to a New York fertility clinic of the daughter’s eggs for implantation into the mother, after fertilisation using an anonymous sperm donor. The Authority refused to authorise export of the eggs on the basis that there was insufficient evidence that the daughter had consented to this particular use of her eggs after her death.  The judge held that although the daughter had signed a form consenting to posthumous use of her eggs, and although there was evidence that the daughter contemplated her mother acting as a surrogate during her lifetime, there was no clear evidence that she intended her mother to act as a surrogate after her death, or that she had ever contemplated the practical or legal issues involved in a surrogacy arrangement or resulting from the use of a foreign anonymous sperm donor. The judge therefore concluded that the Authority’s decision was rational and lawful.  Mr Justice Ouseley also held that the Article 8 rights of the parents were not engaged because Article 8 does not encompass the right to use the gametes of someone who has not consented to that use; and that in any event, any interference with their Article 8 rights was justified. 

The full judgment can be read here: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1706.html 

Catherine Callaghan acted for the Human Fertilisation and Embryology Authority in the case.