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A victory for consent – but what about the welfare of the child?

11 July 2016
By Kriss Fearon
Reproductive Research Group, De Montfort University, Leicester
Appeared in BioNews 859

It was recently reported that a couple, 'Mr and Mrs M', whose daughter 'A' died of cancer, leaving frozen eggs in storage, have won the right to have their request for export reconsidered by the Human Fertilisation and Embryology Authority (HFEA) (reported in BioNews 858). If successful, the couple intend to take A's frozen eggs to New York, have them fertilised with anonymous donor sperm, and the embryos implanted into Mrs M. Any resulting child will be brought up as the couple's grandchild.

The point at issue was whether A had given proper consent for the eggs to be used by Mrs M to act as a surrogate on her daughter's behalf. When the eggs were extracted and frozen, they were intended for A's own use. It was only some time later, as it became clear that her cancer was terminal, that A expressed a wish for her mother to get pregnant with her eggs and for her parents to bring up the child. This was not communicated formally to the HFEA; however, the Court of Appeal ruled that A had nevertheless given the required legal consent despite not completing the necessary paperwork.

However, some features of this case, when taken together, raise wider welfare of the child issues. Lady Justice Arden notes in her judgment that the HFEA said it did not need to consider the grandmother's age or the family connection between her and the child, and consequently the Court of Appeal did not take these into consideration (1). Yet the age of the grandparents, the intended social relationship between them and the child, and the child's lack of access to living biological parents, are troubling features of the case which deserve proper scrutiny. 

It is very rare for children to be born posthumously, via surrogate and donor, according to the wishes of the grandparents. There are several cases in Russia, where a man has died and his mother has used his sperm with a surrogate to have her grandchild (2), and the practice has caused controversy there. In the UK, cases of posthumous donation have involved the dead person's partner: this person is both the legal and genetic parent, and present in the child's life to bring them up. Mr and Mrs M have said that they want A to be treated as the child's mother (3). As A is dead and the father will be an anonymous sperm donor, this means that a child may be born who will never be able to know either of its genetic parents.

Intergenerational surrogacy is not uncommon when either the mother or the daughter cannot carry a child. Legally, however, this case would not be considered a surrogate pregnancy. In the UK, the woman who gives birth is the legal mother; in a standard surrogacy case, motherhood would then be transferred to the intended parents. It is not possible for legal motherhood to be assigned to a woman who has died if she was not carrying the child at the time. This means that Mrs M, the grandmother, will be the legal mother and, as her husband, Mr M will be the legal father. Mr and Mrs M will have the social and legal role of parents, but they wish to bring the child up as their grandchild. Leaving aside speculation about how this might be explained in practice, this potentially leaves the child without anyone in its life who it can call 'mum' or 'dad'.

Mr and Mrs M are currently aged 59 and 60, respectively. They would be in their late 70s by the time any child born reached adulthood. A was an only child and there are no siblings or a partner to step in if one or both of the grandparents dies. Older parenthood in general is a concern for this reason, but when these may be the only adults in the child's immediate family, the child may face the early loss of the only people it will ever know as parents.

In public, the focus of the case has been on Mr and Mrs M's intention to fulfil A's desire to have children, even though she is not able to act as the child's mother, and their own wish to become grandparents. Yet being born with no living or available parents is usually thought of as a disadvantage and a major loss for a child. In acknowledging the needs of the adults, it is not clear that the child's best interests have been fully considered.

The HFEA has been asked to reconsider the case in the light of the Court of Appeal's findings and make a decision about whether the eggs can be exported. This case poses difficult and important questions about the implications for the child. Given the likelihood that this situation will arise again in future, there needs to be a clear and public debate about where the balance lies between the wishes of the adults and the welfare of any future child.

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