Widower’s f ight for a baby using dead wife’s eggs
A MAN whose wife died while pregnant is fighting for the right to use the last embryo they created through IVF to have a baby with a surrogate.
Ted Jennings, 38, wants a High Court judge to allow him to use the embryo created using his sperm and his late wife’s eggs.
But lawyers for the Human Fertilisation and Embryology Authority (HFEA) have said Mr Jennings’ application should be dismissed because his wife, Fern-Marie Choya, had not provided written consent.
Mr Jennings, an investment manager from Highbury, north London, and Miss Choya moved to the UK from Trinidad separately. They met in 2007 and married two years later.
The couple underwent three cycles of IVF treatment in 2013 and 2014 without success, before naturally conceived pregnancies in 2015 and 2016 ended in miscarriage. They remortgaged their home to afford private treatment and underwent further IVF cycles in 2017 and 2018.
Miss Choya became pregnant with twins in late 2018 but died in February 2019, aged 40, from complications resulting in a uterine rupture. One embryo, created in 2018, is in storage.
At the hearing in London yesterday, Jenni Richards QC, for Mr Jennings, said the issue with using the remaining embryo in treatment with a surrogate mother related to a legal ‘requirement’ that consent ‘be recorded in writing and signed by the person giving it’. In a written case outline, she added: ‘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.’ Before IVF treatment, Mr Jennings gave consent to the embryos being used in the event of his death, but his wife was not asked the equivalent question.
Mr Jennings said: ‘It’s not something you think of when trying to create a life. You’re thinking of the future, not hoping for the worst possible outcome.’ Miss Richards said preventing Mr Jennings using the embryo would be a ‘significant interference’ with his human right to respect for private and family life.
But Kate Gallafent QC, for the HFEA, argued that without written consent it would not be lawful to use the embryo.
She said the authority was sympathetic to Mr Jennings’ case, adding: ‘In the absence of such written consent, it is not lawful to use the embryo in treatment with a surrogate.’
She said the requirement of written consent was an ‘express statutory condition’ set out in the 1990 Human Fertilisation and Embryology Act and ‘central to the legislative regime’.
The judge is expected to deliver a ruling in the near future.