Widower granted permission by Family Court to use embryo of deceased wife to have a baby using a surrogate

In a recent high-profile judgment the Family Court has granted a declaration that it is 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.

 

Mr Jennings and his wife had been undergoing fertility treatment when the embryo was created in 2018. Tragically Ms Choya died as a result of complications in her pregnancy. Although the couple had signed a number of relevant consent forms during the process, they had not signed a form concerning the use of their remaining embryo in storage for a surrogacy arrangement after her death.

Mrs Justice Theis considered that the ‘far from clear’ IVF process did not give her sufficient chance to consent in writing. The Family Court found that refusal to grant a declaration would be a disproportionate interference with Mr Jennings’s right to a family life under Article 8 of the European Convention of Human Rights.

Sian Kenkre, Senior Associate at The Wilkes Partnership comments: “The case highlights the legal issues and complexities involved in assisted fertility and surrogacy cases with the Judge suggesting that the fertility regulator the HFEA may wish to review the relevant consent forms to provide clarity and prevent the situation occurring again.”

“Having been through IVF myself to have my children, I vividly recall the stress and emotions involved and the suggestion for greater clarity in the paperwork is certainly helpful. There are so many issues for those undergoing assisted fertility to consider and it is so important that all potential issues are set out clearly for them.”

Sian is a specialist family law solicitor and has a particular interest and many years of experience in helping intended parents with the challenges of the legal aspects of the surrogacy and assisted fertility processes.