Widower wins right to use IVF embryo with surrogate

THE husband of a woman who died suddenly while pregnant with twins can use an embryo created during fertility treatment to have a child using a surrogate, a judge has ruled.

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, had undergone a number of IVF cycles since 2013.

The investment manager, of Highbury, north London, asked a High Court judge in May if it would be lawful to try to make use of the couple’s one remaining embryo, which is in storage at a private fertility clinic.

His application was opposed by the Human Fertilisation and Embryology Authority (HFEA), which argued it would be illegal for it to be used in that way because of the lack of written consent from Ms Choya.

But in a ruling yesterday, Mrs Justice Theis said she was “satisfied” that Ms Choya did consent to the use of the embryo in the event of her death.

She also concluded that Ms Choya had not been given sufficient opportunity to give the consent in writing because a form completed during the IVF process was “far from clear” over the posthumous use of an embryo.

Mrs Justice Theis said the HFEA “may want to consider” whether the form should be reviewed in light of her judgment.

She said in her ruling that Mr Jennings and Ms Choya, who moved to the UK from Trinidad, met in 2007 and married in 2009.

They wanted a family and, after struggling to conceive naturally, had three cycles of IVF treatment in 2013 and 2014 without success.

Ms Choya conceived naturally in 2015 and 2016 but both pregnancies were ectopic and ended in miscarriage.

The couple then underwent further IVF cycles in 2017 and 2018 and remortgaged their home in order to afford private treatment, with Ms Choya becoming pregnant with twin girls in November 2018.

The judge said Ms Choya, an accountant, died “tragically and without warning” in February 2019 after developing complications and suffering a uterine rupture.

In a witness statement Mr Jennings said he did not recall his wife having any “negative emotions towards parenthood in the event of using a surrogate, donated embryos or adopting a child”.

Ms Choya’s sister also told the court her family “wholeheartedly” believed that Fern-marie would want Mr Jennings to use the frozen embryo in treatment with a surrogate.