Two senior judges have allowed a 60-year-old woman to continue to fight an extraordinary legal battle that may allow her to give birth to her dead daughter’s baby.
The woman, who would be at least 61 by the time the child is conceived, has been given the right to appeal against a High Court decision that there was not enough evidence to suggest that the daughter would have wanted her mother to give birth to the baby.
If she and her 59-year-old husband are granted permission to use the frozen eggs, which are stored in a London clinic, it is believed that it will be the first time in the world that a grandmother would give birth to her dead child’s baby.
The couple’s daughter, who cannot be named for legal reasons and was referred to as ‘AM’ in court proceedings, died aged 28 in 2011 but had frozen her eggs five years previously when she was diagnosed with bowel cancer.
Her parents, referred to as Mr and Mrs M, say their daughter wanted her mother to carry a child in the event that she did not survive. However, the Human Fertilisation and Embryology Authority (HFEA) refused to release the eggs because she had not provided full written permission.
In their judgment Lord Justice Treacy and Lord Justice Floyd both admitted they had been ‘doubtful’ that the mother would have any prospect of winning the case but said they were swayed following ‘clear and persuasive’ arguments from the family’s barrister.
In previous hearings, it was claimed that AM had told her mother on her death bed: ‘I want you to carry my babies. I want you and dad to bring them up. They will be safe with you. I could not have had better parents.’
Mrs M said her daughter had ‘wanted her genes to be carried forward after her death’ and had regarded the eggs as ‘living entities in limbo waiting to be born’.
The matter came to court because of the HFEA’s insistence on needing written permission from the daughter.
In a High Court hearing last year Mr Justice Ouseley was told that AM, who was single at the time of her death, would have been ‘devastated’ if she had known the eggs would never be used but he supported the HFEA’s decision, adding that it was not in breach of the family’s human rights.
The judge said: ‘I must dismiss this claim, though I do so conscious of the additional distress which this will bring to the claimants, whose aim has been to honour their daughter’s dying wish for something of her to live on after her untimely death.’
The court heard that the family’s plan had been to take AM’s eggs to a treatment centre in New York so that they could be fertilised using sperm from a donor and implanted into Mrs M at a cost of £60,000.
An HFEA spokesman said: ‘We understand why Mr and Mrs M would wish to carry out what they see as their daughter’s wish.
‘However, we considered their application on three separate occasions, concluding each time that the consent given did not satisfy the requirements of the law. Our decisions were then reviewed by a High Court judge, who supported our view.
‘We will read today’s decision to grant appeal carefully. Out of respect for Mrs M and her family, and for the ongoing legal process, it would be inappropriate for us to comment further at this time.’