Family Law: G v Human Fertilisation and Embryology Authority
A recent ruling has provided insight into the laws that govern the use of eggs in fertility treatment after the donor’s death.
The facts of this case are particularly tragic and concern a woman in her early 30s, ‘N’, who died from breast cancer in June 2023. Shortly after her diagnosis and prior to commencing chemotherapy, N took steps to freeze her eggs.
An only child, N clearly shared a close relationship with her mother, G, and worked as a teacher at the nursery her mother ran. N and G frequently discussed N’s desire to have a child. Following N’s passing, G reported that it was her daughter’s last wish that her eggs should be used to conceive a child with donor sperm and surrogacy that would be raised by G. Consequently, G sought permission to use N’s eggs and start fertility treatment.
The Law
The Human Fertilisation and Embryology Acts (1990 and 2008) seek to ensure that the donor’s wishes. Written consent for posthumous use via the correct clinic forms is the most reliable way to evidence a donor’s wishes after their death.
However, the Family Court has provided in previous judgements that written consent is not the only way to evidence a donor’s wishes: actions and discussions can form a clear picture of the donor’s wishes from which consent can be inferred. This approach is particularly relevant in matters where the donor was not given the opportunity to provide formal consent. Therefore, the Family Court can consider the testimony of the deceased donor’s relatives and close ones to infer their consent.
The Judgement
G’s case was heard by Sir Andrew MacFarlane, President of the Family Division. who said that in order to grant G’s request to use N’s eggs, she would have needed to show that:
- N consented to the use of her eggs in the manner that G proposed; and
- N would have signed the relevant forms to record her consent if she had been given the opportunity before her death.
The Court reflected on the evidence presented in this case, including testimony relating to N’s repeated wishes to have a child during her last days and her early considerations about using a surrogate due to her illness. However, the judge concluded that, whilst expressing his deepest sympathies to G, she could not be permitted to use her daughter’s eggs to conceive a child due to the absence of N’s clear and express consent. Although it was established that N undoubtedly wished for her eggs to be used to conceive a child and recognised the necessity of a surrogate, it could not be evidenced that she anticipated and consented to their use in the manner which G proposed.
Reflections
This ruling underlines the vital need to ensure that the consent and wishes of people who freeze their eggs and sperm (‘gametes’) are sought and documented at every stage of the fertility process, including what they would like to happen to their gametes if they die. The Court’s consideration also highlights the complex nature of fertility law when considering the legal ramifications if G’s application were to succeed (for example, the steps which G would need to take to secure her legal parenthood of a child born through surrogacy).
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