A couple known only as Mr. and Mrs. M have been granted the right to appeal a High Court ruling which would block Mrs. M from the right to use her late daughter’s frozen eggs.
The woman maintains that her daughter, referred to as AM in the court, asked her to use the eggs to “carry my baby for me” before she passed away from bowel cancer in 2011 aged 28.
AM’s parents claim that she wanted her them to bring up her baby as their own child in order that she could die, knowing that her genes would be carried on.
But a lack of written evidence for this assertion has so far blocked the couple from taking the eggs to the USA where Mrs. M had planned to receive fertility treatment to have them implanted in her own womb.
When the case was opened, Mrs. M was aged 55 and she claims that the delays have meant that she is now older than would have been ideal but that this is not her fault and so should not be considered as part of the problem.
The sad case has been ongoing for five years without authorities relenting but in late February this year, Lord Justice Treacy read a statement at the Court of Appeal in which he said the woman had “an arguable case and a real prospect of success.”
While no date has yet been set for the appeal, once it is, there could potentially be scope for even more delay with the losing party then having the right to appeal further at the Supreme Court.
The trouble began when following AM’s death, The Human Fertilisation and Embryology Authority (HFEA) rejected Mr. and Mrs. M’s request for them to release the eggs without AM’s written permission.
While it is legal in the UK to use a person’s eggs following their death, that person must have given prior consent. The HFEA does have the right to allow export of eggs in certain cases and there have been previous cases where applicants have sought permission to export successfully without meeting the statutory consent requirements.
In Mr. and Mrs. M’s case, their Barrister gave “clear and persuasive” arguments that whilst written evidence was not present, the indications were that AM wanted her Mother to carry her child and for her parents to bring up the baby together.
In a past court hearing it was said that M saw the eggs as “living entities” and considered them to be merely “waiting to be born”.
Should their appeal be successful, Mr. and Mrs. M plan to take their daughter’s eggs to a clinic in New York where they will be fertilised with donor sperm and then implanted into Mrs. M. The treatment will cost an estimated £60.000.
The couple continue to await a date for their appeal.