A woman who is seeking to use her deceased daughter's frozen eggs to have a child has successfully appealed a ruling made against her.
The woman's daughter, known as A, was diagnosed with cancer at the age of 21 and died six years later in 2011. Her daughter wanted to have IVF in 2005 but was too ill to undergo the procedure, deciding to extract and store her eggs a few years later. Three eggs have since been in storage at a London clinic.
The daughter had agreed for her mother, who is 60 years old, to use the eggs and carry her own grandchild in the event that A was unable to do so (see BioNews 801). Consent forms were signed to the removal and storage of the eggs, and to uses of the eggs other than in research, but the daughter did not complete a form detailing the precise use proposed by the mother.
Under UK law, treatment can only be provided, including the posthumous use of gametes, if 'effective consent' is obtained, which includes providing all the 'proper' information and the offer of counselling. However, the HFEA has discretion to waive the legal requirements that consent must be signed and made in writing when agreeing to the export of gametes for use in treatment abroad, but it can only do so in way that does not circumvent that legislation.
The HFEA's Statutory Approvals Committee refused to give the mother permission to export the eggs to the USA, where they could be used in treatment, saying there was insufficient evidence that the daughter had consented to their proposed use. The High Court ruled last year that it was entitled to reach this conclusion and had not acted unlawfully (see BioNews 807).
Overturning that decision, Sir James Munby, president of the family division, Lady Justice Arden and Lord Justice Burnett in the Court of Appeal ruled that the Committee's decision was flawed and irrational. Giving the lead judgment, Lady Justice Arden said it was wrong on three levels:
'First, there was on the face of it the misstatement of certain of the evidence about A's consent by the Committee. Second … 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.'
Lady Justice Arden explained the committee was wrong to say that it did not have evidence that A wanted her mother to carry her child after her death, which she said 'flies in the face of A's mother's evidence, none of which was rejected'. The mother told the committee that she and her daughter had discussed carrying A's children in the event of her death. The mother added having a child was something her daughter wanted more than anything else in the world, and that during a conversation about the pregnancy of a cousin, A said that she already had her babies: 'They are just on ice, aren't they, Mum?'
The judge also said that the committee was wrong to assume that A 'needed to know matters which on the face of it were not relevant to her situation', and that in deciding what information should have been given to A, it applied the same test of sufficiency as it would to a hypothetical case without examining the differences.
Lady Justice Arden said that the information required 'may vary according to the particular circumstances', and held the committee should have made 'a proper assessment of the totality of the evidence in A's case'.
The HFEA has been ordered to reconsider the mother's application.