Surrogacy Setback: Widower seeks to waive written consent requirements in posthumous fertility case

May 17, 2022

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3 min read

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What's going on here?

A British widower is looking for legal permission to use a viable embryo for surrogacy – without his late wife’s written consent.

What does this mean?

Ted Jennings, a 38 year-old investment manager from North London, is seeking approval from the High Court to use the last remaining viable embryo he created with his late wife for surrogacy. He and his late wife, Fern-Marie Choya spent years trying for a baby, going through numerous rounds of in-vitro fertilisation (IVF) treatments between 2013 and 2018. After several failures and miscarriages, Choya finally conceived twins in 2019. However, disaster struck shortly after. She passed away just 18 weeks into her pregnancy from a uterine rupture, a rare and severe pregnancy complication.

Prior to the IVF treatment, Jennings consented for the created embryos to be used in the event of his death – but Choya was not given the opportunity to give equivalent consent. Her consent form instead stated that she should ask the fertility clinic for more information if “you wish your eggs or embryos to be used in someone else’s treatment if you die”. Jennings’s legal team believes that the statement was designed with a different scenario in mind. In contrast, the standard IVF consent form for same-sex female couples explicitly asks for posthumous surrogacy consent. Jennings has stated in court that he would not be pursuing surrogacy treatment had he not been absolutely sure it was in line with his late wife’s wishes.

The fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), has expressed its sympathies for Jennings’s situation but stated that it would be unlawful to use the last remaining embryo in a surrogacy treatment.

What's the big picture effect?

The present scenario represents a novel case of posthumous surrogacy, raising ethical issues regarding the right for continued pursuit of parenthood following the death of a partner subsequent to fertility treatments.

Peter Thompson, chief executive of HFEA, maintains that the legal position on the posthumous use of an embryo with a surrogate is that it can only take place with signed written consent. He said: “The last thing the HFEA wishes to do is to stand in the way of Mr. Jennings, but we have to regulate in accordance with the law. As the law stands, there is nothing the HFEA could do to remove the need for written consent in such cases”.

The legal issue in question is that there is a legal requirement that consent be recorded in writing and signed by the person giving it. In the case outline, Jennings’s lawyer outlined: “In all the circumstances, it can, and should, be inferred that Choya would have provided written consent to Jennings had she been given the opportunity to do so”. Through no fault of her own, Choya was not given the opportunity to provide said consent in writing owing to her untimely death.

Should Jennings be prevented from using the embryo, it could arguably represent a significant interference with his Article 8 ECHR right to private and family life. HFEA’s primary submission is pursuant to the Human Fertilisation and Embryology Act 1990, which sets out that the requirement of written consent is an express statutory condition.

Justice Theis of the High Court aims to deliver a written ruling in the near future. Her judgement will decide whether Jennings may proceed with surrogacy treatment to fulfil his late wife’s wishes, and by extension, whether future widowers would be allowed to use fertilised embryos in posthumous surrogacies.

Report written by Calvin Tan

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