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Court of Appeal rules that woman may act as surrogate in absence of formalities

M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to a child.  The woman’s daughter was deceased having died of cancer in 2011.
The appellant’s daughter had IVF treatment and in January 2010 had asked her mother to carry and raise her children following her death.  However, the required forms had not been completed and it was not clear that ‘effective’ consent had been given for the purposes of the Human Fertilisation and Embryology Authority Act 1990.  The Act requires the regulator to provide services only where the owner of the genetic material has provided consent.  The fertility regulator (HFEA) had refused its consent to allow the eggs to be exported to a fertility clinic in the USA so that the procedure could be carried out. 
It was contended that while the deceased had time from January 2010 until June 2011 to put in place clear instructions and discuss her plans with others, this had not been done; nothing had been written down and the method of fertilisation had not been agreed.  However, the Court of Appeal considered that the deceased’s statement to her mother, in which she had clearly expressed her wishes, had been granted insufficient weight.
The HFEA will be required to reconsider whether to allow the eggs to be sent to the US fertility clinic, taking into account the matters that they had not considered previously, including the conversation which the deceased had with her mother.
Read news article here and UK Human Rights Blog article here.

Medical Law