A report by James Beal for The Times of London.
A High Court judge has ruled that the husband of a woman who died while pregnant can use an embryo created during fertility treatment to have a child using a surrogate.
Ted Jennings, 38, and his late wife, Fern-Marie Choya, who died aged 40 in 2019 after her womb ruptured while she was 18 weeks pregnant with twin girls, had undergone several IVF cycles.
Jennings, an investment manager, wants to use the couple’s remaining embryo — created using his sperm and his wife’s eggs in 2018 — in treatment “with a surrogate mother”.
Jennings, of Highbury, north London, asked a High Court judge for a declaration that it would be lawful for him to do so, because Choya had not given consent in writing.
His application was opposed by the Human Fertilisation and Embryology Authority (HFEA), which argued that to do so would be unlawful because of the lack of written consent.
In a ruling yesterday, Mrs Justice Theis said she was “satisfied” that Choya had consented to use of the embryo, which is stored at a private fertility clinic in London, in the event of her death. The judge concluded that Choya had not been given sufficient opportunity to give consent in writing because a form completed during the IVF process was “far from clear”.
The lack of clarity related to prompts about what a woman should do to provide consent to posthumous use of an embryo by her partner.
The judge said the HFEA “may want to consider” whether the form should be reviewed in light of her judgment.
She said: “I am satisfied that, in the circumstances of this case, the court can infer from all the available evidence that Ms Choya would have consented to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death. This is being considered in the context where, in my judgment, she had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic.”
The judge said that the interference with Jennings’s “right to respect to become a parent” were she not to grant the declaration he sought “would be significant, final and lifelong”.
The judge said that Jennings’s case would not “open any floodgates”.
The judge said that Jennings and Choya, who had moved to the UK from Trinidad, met in 2007 and married in 2009. After struggling to conceive naturally, the couple underwent three cycles of IVF treatment. Eventually they remortgaged their home to afford private treatment and Choya became pregnant with twin girls in 2018.
In a witness statement, Jennings said he did not recall either him or his wife having any “negative emotions towards parenthood in the event of using a surrogate, donated embryos or adopting a child”.
The judge also considered evidence from Choya’s family, whom she described as speaking “with one voice” about what she would have wanted. This included one of her four sisters who said she “wholeheartedly” believed Choya would have wanted Jennings to use the frozen embryo in treatment with a surrogate.
James Lawford Davies, Jennings’s lawyer, said: “It was clear that this is what Fern would have wanted and this very thorough judgment allows her wishes to be respected.”
The HFEA said it feared the judgment would undermine the law that states written consent is required in such cases and was considering whether to appeal.