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In a high-profile judgment, the Family Court has granted a declaration that it would be lawful for the Applicant, Mr Jennings, to use an embryo created using his sperm and the eggs of his late wife, in treatment with a surrogate, notwithstanding the absence of her written, signed consent to that effect.

The case considered the statutory requirement, under s.12(1)(c) and Schedule 3, paragraph 1(1) of the Human Fertilisation and Embryology Act 1990, that any consent for the use of a person's embryo must be in writing and signed by the relevant person (including for any posthumous use of an embryo).

The embryo was created in 2018 when Mr Jennings and his late wife, Ms Choya, were undergoing fertility treatment to fulfil their wish to have children of their own. Without warning, Ms Choya tragically died as a result of complications in her pregnancy. Although she and Mr Jennings had completed a number of the relevant consent forms, they had not signed any consent form concerning his use of their remaining embryo in storage for a surrogacy arrangement after Ms Choya’s death.

Theis J considered that a refusal to grant the declaration would be a disproportionate interference with his right to family life under Article 8 of the European Convention of Human Rights, and that the Court was therefore required to by section 3 of the Human Rights Act 1998 to “dispense with the requirement for written and signed consent in this limited situation” (at [104]). The Court found that “[t]he reference to written consent is an evidential rule” and that “there was a lack of opportunity to Ms Choya to provide that consent in writing” (at [101]-[102]).

Kate Gallafent QC and Ravi Mehta acted for the Interested Party, the HFEA, instructed by Graham Miles of Blake Morgan LLP.

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