High Court's Decision Refusing Permission To Allow Export And Use Of Female Eggs After Death Of The Donor

In the recent case of 'R (on the application of IM and MM) v HFEA [2015] EWHC 1706 (Admin)' the High Court has refused to grant permission for the parents of a deceased daughter to export their daughter's frozen eggs to the USA in order for the mother to receive fertility treatment so that she could give birth to and raise her daughter's child.

The case concerned a young woman, 'AM' who died in her late 20s from bowel cancer. Prior to her death, AM had been concerned that her cancer and / or the treatment might prevent her from having children and therefore she underwent treatment at the IVF centre in Hammersmith for the removal of her eggs, which were then frozen and stored unfertilised. At this time she signed a consent form for the continued storage of her eggs in the event of her death for 'later use' and which refused consent for them to be allowed to perish. She did not have a partner but shortly before her death she expressed the strong wish to her mother, Mrs M, that one or more of her eggs, after being fertilised by a sperm donor, should be implanted in her mother who would then give birth to the baby and bring it up along with AM's father.

Following her death, AM's parents applied to the IVF fertility clinic in Hammersmith for Mrs M to be implanted with one of more of the eggs, fertilised by an anonymous sperm donor. The clinic refused treatment, however, as AM had not signed the necessary consent forms during her lifetime for her eggs to be used in this way.

AM's parents subsequently found a treatment centre in New York who were prepared to carry out the treatment. Since AM had not provided the required consents for either export or posthumous use, permission could not be granted under the HFE Authority's General Directions. AM's parents therefore applied to the Statutory Approvals Committee (under its delegated powers) to make a special direction which would permit the export of AM's eggs to a the treatment centre in New York for posthumous use. This application was refused by HFEA three times, effectively on the basis that AM had not provided documented consent to her eggs being used by her parents after her death or being taken abroad.

AM's parents therefore applied to the High Court challenging HFEA's decision, essentially inviting the court to find that their own evidence of AM's wishes were sufficient. The first ground of their argument was that the Committee's appraisal of the evidence had been irrational. Firstly, AM had...