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Mother wanting to use deceased daughter's eggs gets permission to appeal

29 February 2016
Appeared in BioNews 841

A woman who is in a legal bid to use her deceased daughter's eggs has been given permission to take her case to the Court of Appeal.

The woman, known as IM, is challenging a decision made by the Human Fertilisation and Embryology Authority (HFEA) to refuse to grant permission to export the eggs, which had been stored by her daughter, AM, in 2008, before her death from bowel cancer (see BioNews 801).

The use of gametes after a person's death is permitted in the UK, but that person must have given their consent to such a use. The HFEA has discretion to permit the export of gametes, however, and in some cases where the person does not meet the relevant statutory consent requirements, applicants have sought to export gametes to where their use would be lawful.

The HFEA refused permission to export the eggs to the USA, saying that there had been insufficient evidence that the daughter had consented to the eggs being used by her parents as she had not specified what was to happen to them (see BioNews 792). IM contended that her daughter had expressed the wish that, in the event of her death, the eggs should be fertilised and implanted into her mother and her parents would raise any children that were born.

The High Court ruled last year that the HFEA's refusal was lawful (see BioNews 807). IM is now seeking to appeal that decision. Granting leave to appeal, Lord Justice Treacy said it was it is 'arguable that the HFEA and the judge took too stringent an approach to the question of special directions'.

The woman's lawyer, Ms Jenni Richards QC, argued that, since the relevant statutory provisions allow consent requirements to be modified in certain circumstances, the judge was wrong to take a more rigorous approach than the statute required.

Furthermore, Ms Richards said that the HFEA had failed to take sufficient account of AM's terminal condition and that she was unaware that further decisions were required on her part. She said there was 'clear evidence', however, of what AM wanted to happen to the eggs after her death.

Lord Justice Treacy admitted that he had initially been doubtful that the woman's case was strong enough to proceed, but upon hearing the submissions changed his mind, concluding there is an 'arguable case with a real prospect of success'.

An HFEA spokesperson told the Daily Mail: 'We understand why Mr and Mrs M would wish to carry out what they see as their daughter's wish.

'However, we considered their application on three separate occasions, concluding each time that the consent given did not satisfy the requirements of the law. Our decisions were then reviewed by a High Court judge, who supported our view.

'We will read today's decision to grant appeal carefully. Out of respect for Mrs M and her family, and for the ongoing legal process, it would be inappropriate for us to comment further at this time.'

A date for the hearing has not yet been set. IM is now 60 years old.

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