High Court's Decision refusing permission to allow export and use of female eggs after death of the donor
In the recent case of 'R (on the application of IM and MM) v HFEA  EWHC 1706 (Admin)' the High Court has refused to grant permission for the parents of a deceased daughter to export their daughter's frozen eggs to the USA in order for the mother to receive fertility treatment so that she could give birth to and raise her daughter's child.
The case concerned a young woman, 'AM' who died in her late 20s from bowel cancer. Prior to her death, AM had been concerned that her cancer and / or the treatment might prevent her from having children and therefore she underwent treatment at the IVF centre in Hammersmith for the removal of her eggs, which were then frozen and stored unfertilised. At this time she signed a consent form for the continued storage of her eggs in the event of her death for 'later use' and which refused consent for them to be allowed to perish. She did not have a partner but shortly before her death she expressed the strong wish to her mother, Mrs M, that one or more of her eggs, after being fertilised by a sperm donor, should be implanted in her mother who would then give birth to the baby and bring it up along with AM's father.
Following her death, AM's parents applied to the IVF fertility clinic in Hammersmith for Mrs M to be implanted with one of more of the eggs, fertilised by an anonymous sperm donor. The clinic refused treatment, however, as AM had not signed the necessary consent forms during her lifetime for her eggs to be used in this way.
AM's parents subsequently found a treatment centre in New York who were prepared to carry out the treatment. Since AM had not provided the required consents for either export or posthumous use, permission could not be granted under the HFE Authority's General Directions. AM's parents therefore applied to the Statutory Approvals Committee (under its delegated powers) to make a special direction which would permit the export of AM's eggs to a the treatment centre in New York for posthumous use. This application was refused by HFEA three times, effectively on the basis that AM had not provided documented consent to her eggs being used by her parents after her death or being taken abroad.
AM's parents therefore applied to the High Court challenging HFEA's decision, essentially inviting the court to find that their own evidence of AM's wishes were sufficient. The first ground of their argument was that the Committee's appraisal of the evidence had been irrational. Firstly, AM had signed a form consenting to the storage of her eggs for later use and she had positively refused to consent to them being allowed to perish, which would be the inevitable consequence of HFEA's decision. The only way that the eggs could be used was for research (which no one suggested AM had had in mind) or for fertilisation. That inevitably meant that a surrogate and sperm donor would be necessary. AM had only ever wanted her mother as surrogate, and her parents to bring up her children. Since AM had no partner, AM must have known that, if not of her choosing, the donor would be someone her parents would choose. Secondly, AM's parents argued, the Committee had also ignored the fact or failed to appreciate the significance of the fact that AM and her parents had not known that there was another form which if signed, could have authorised what was being proposed. Consequently, no adverse inference should be drawn from the absence of the correct consent form and AM's clear wishes should not fail for want of paperwork. AM had believed that everything was in place. She trusted her mother, and had no reason to seek out any further form or information about the implications of her mother being her surrogate.
These arguments were rejected by the Judge who concluded that although AM had clearly wanted her mother to act as surrogate if she was alive, there was insufficient evidence that she wanted this after her death in the particular circumstances which the application entailed. The proposed posthumous use of her eggs was not shown to be "exactly what A had wished for". The Judge did not accept the argument put forward by AM's parents that HFEA Committee was simply allowing a want of paperwork to stand in the way of AM's clear wishes. Had AM signed the relevant forms, that would have resolved the issue, but their absence was not fatal to a positive decision. It was instead the fact that so many issues of importance were never discussed and resolved. Although there was a general expression of wishes to her mother and to a friend about what should happen after her death, there was an absence of evidence that AM had contemplated or consented to the export of her eggs, that she had taken any steps to research sperm donors or would have consented to the use of an anonymous sperm donor selected by her parents, or that she had properly considered the legal and other implications of her mother acting as surrogate. The Judge held that there had been plenty of time between AM's terminal diagnosis and her death in which to obtain full information and give clear instructions. Moreover, the form she had signed made reference to the existence of a further form intended to provide the consent required.
The Judge also rejected the second and third grounds of the claimant's arguments that the Committee had failed to distinguish between its General and Special powers of direction and had erroneously based its decision on the General rather that the Special (full discretionary) powers available and that the refusal to grant permission was a disproportionate interference of AM's Human Rights.
Accordingly, although acutely conscious of the additional distress that AM's parents, whose aim had been to honour the wishes of their dying daughter, would suffer, the Judge ruled that the claim should be dismissed. The decision means that (unless there is an appeal) AM's eggs cannot be taken outside the UK for treatment and instead will be destroyed once the permitted storage period comes to an end.
AM's parents have issued a statement in response to the ruling, saying:
"We are heartbroken that the judge has ruled against us. Our daughter went through an enormous amount when she was very ill to collect and store her eggs, and we know in our hearts that she regarded them as a life force which she wanted live on after her death – she referred to them as 'her babies' and told us before she died that she was happy they would be safe with us. She consented to the use of her eggs after her death and signed the form she was given at her clinic; she was never given any additional form to complete. Unless the court's decision is overturned, it means that our daughter's precious eggs will perish once their storage period comes to an end. We know that was absolutely what she did not want to happen. We have only ever wanted to honour her dying wishes, and to give effect to all she went through to preserve this part of her, and we are deeply saddened that the court has not allowed us to do so."