British High Court: Trinidadian Widower wants to use dead wife’s frozen embryo for surrogate baby

A report by Eleanor Heyward for The Times of London.

A man has asked the High Court to let him use an embryo from his dead wife to have a baby with a surrogate mother.

The embryo was frozen in 2018 after Ted Jennings, an investment manager, and Fern-Marie Choya remortgaged their house to pay for IVF treatment. She died the following year aged 40 after becoming pregnant and “had no opportunity” to provide written consent for the remaining embryo to be used in the event of her death, the court was told.

Jennings, from Highbury, north London, asked Judge Lucy Theis yesterday to rule that it would be lawful for him to use the embryo “in treatment with a surrogate mother”.

However, the Human Fertilisation and Embryology Authority, which regulates IVF treatment, said his application should be dismissed because the law states people must provide written consent for frozen eggs, sperm and embryos to be used after their death.

The couple married in 2009 after moving to Britain from Trinidad but struggled to conceive naturally and went though three unsuccessful cycles of IVF in 2013 and 2014.

Choya then conceived naturally in 2015 and 2016 but both pregnancies ended in miscarriages. The couple had further IVF cycles in 2017 and 2018 and remortgaged their home to meet the cost of private treatment. Choya became pregnant in late 2018 but developed complications which resulted in a uterine rupture.

Jenni Richards QC, representing Jennings, said that only one embryo remained in storage. She added: “The evidence is that Ms Choya would have wanted Mr Jennings to be able to use their partner-created embryo in treatment with a surrogate in the event of her death.

“In all the circumstances, it can, and should, be inferred that Ms Choya would have provided written consent to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death had she been given the opportunity to do so. Ms Choya had no opportunity to provide that consent in writing.”

She said that preventing Jennings from using the embryo would be a “significant interference” with his human right to respect for private and family life and prevent him from fulfilling the couple’s wish to have a child.

Kate Gallafent QC, representing the authority, said using the embryo would be unlawful under the 1990 Human Fertilisation and Embryology Act. She said: “It is common ground between the parties that Ms Choya did not provide written consent to the embryo being used by Mr Jennings in treatment with a surrogate in the event of her death.”

She added that the authority’s primary submission was: “In the absence of written consent, it is not lawful to use the embryo in treatment with a surrogate.”

The judge considered the application in the Family Division of the High Court in London and will deliver a written ruling soon.

Couples undergoing IVF, which costs up to £5,000 per cycle privately, have to provide informed consent for how their embryos, eggs and sperm can be used.

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