Court of Appeal gives permission to appeal in the Re M posthumous conception case

We welcome the news that the Court of Appeal has today given our clients, Mr and Mrs M, permission to bring an appeal in the case of IM v HFEA (Re M).

The case involves the stored frozen eggs of a young woman who died prematurely from cancer.  Her parents, Mr and Mrs M, are seeking to export their daughter’s eggs, with a view to using them to conceive a grandchild. Mr and Mrs M were refused treatment in the UK, and so sought permission from the Human Fertilisation and Embryology Authority to take the eggs overseas to a clinic in the USA which was prepared to treat them. When their application for export of the eggs was refused by the HFEA, they applied to the High Court for judicial review to challenge that decision.  Their judicial review was initially refused by Mr Justice Ouseley in June 2015, but the Court of Appeal has now given them permission to bring an appeal.

Following a hearing on 4 February, Lord Justice Treacy and Lord Justice Floyd have said that they were persuaded by Mr and Mrs M’s barrister Jenni Richards QC that Mr and Mrs M had an arguable case with a real prospect of success. The case will now proceed to a full appeal hearing in the Court of Appeal.

The legal issue is one of consent, a key principle of the UK’s laws in relation to eggs, sperm and embryos.  No one disputes that AM said clearly that she did not want her eggs to perish if she died. She hand-completed and signed a written consent form which stated that she wanted her eggs to be ‘stored for later use’ in the event of her death, and had several conversations with her mother and other family members about her wishes. The High Court initially decided that there was insufficient written evidence about precisely how she wanted her eggs to be used to justify challenging the HFEA’s decision to refuse export.  However, we are delighted that the ruling today means that the Court of Appeal will now consider whether the court (and the HFEA) took too restrictive approach and should have thought more carefully about all the evidence of her wishes.

Mrs M has issued the following statement in response to today’s ruling:

My husband and I welcome the Court of Appeal’s decision to allow our appeal to go forward. We were naturally devastated by the previous ruling of the court which (if not overturned) will mean that our daughter’s stored eggs will have to be destroyed.

This was never what our daughter wanted. With characteristic strength of mind, she put herself through a difficult egg collection process while she was having treatment for cancer because she was so determined to save her eggs. She diligently completed and signed all the paperwork she was ever given to say that she wanted her eggs to live on after her death. She told us her eggs were her ‘babies on ice’, and she took comfort from their safety, in our care, once she knew she would not survive. We promised to look after them, just as we looked after her.

We hope that the Court of Appeal will recognise the overwhelming evidence of her wishes. We know that the chances of conceiving a grandchild are very small, but in the unlikely event we are successful, it would mean the birth of a child who would be loved and cherished by us and the rest of our family. That was absolutely what our daughter wanted; we will do everything we can to fight for her and to honour her wishes.

Please note that the court has made a reporting restriction order preventing the identification of any of the parties in this case.

Media coverage of today’s decision:

The Guardian – Court lets mother appeal against ban on using dead daughter’s frozen eggs

The Daily Mail – Legal win for woman, age 60, who wants to use dead daughter’s eggs

BBC News – Woman allowed to challenge dead daughter’s egg use ruling

ITV News – Court to rule in case of woman who wants to use dead daughter’s eggs

Buzzfeed – Court upholds mother’s appeal to use dead daughter’s frozen eggs

The Telegraph – Mother clears hurdle on path to giving birth to own grandchild

The Times – Mother can appeal over daughter’s frozen eggs

CBS This Morning (US TV) – Discussing the case

The Telegraph (comment) – There’s nothing wrong with a mother giving birth to her own grandchild