A HUSBAND can use his late wife’s embryo to have a child after she died suddenly, the High Court has ruled.
Ted Jennings, 38, was finally given the green light to use an embryo created with his sperm and an egg from his late wife Fern-Marie Choya.
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Ms Choya died in 2019 after her womb ruptured while she was 18 weeks pregnant with twin girls.
The 40-year-old had undergone a number of IVF cycles since 2013 and tragically miscarried several times.
Ted, of north London, wanted to use the couple’s one remaining embryo created in 2018 and is in storage at a private fertility clinic in London, to use “in treatment with a surrogate mother”.
The investment manager asked a High Court judge to allow him to lawfully use the embryo despite the fact his late did not given written consent before her death.
The Human Fertilisation and Embryology Authority (HFEA) rejected his original application on those grounds.
But, in a ruling on Wednesday, Mrs Justice Theis said she was “satisfied” that Ms Choya did consent to using the embryo in the event of her death.
The judge also concluded that Ms Choya wasn’t given sufficient opportunity to give the consent in writing because a form she completed during the IVF process was “far from clear” in prompts about what a woman should do to provide consent to loved ones after death.
She said HFEA “may want to consider” reviewing the form in light of the verdict.
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Justice Theis said: “Turning to the issue of Ms Choya’s consent, I am satisfied that, in the circumstances of this case, the court can infer from all the available evidence that Ms Choya would have consented to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death.
“This is being considered in the context where, in my judgment, she had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic.”
She ruled there was “no conflict of individuals’ rights” and that permitting Mr Jennings to go ahead “would not undermine a fundamental objective of the statutory scheme, namely the requirement for consent”.
The judge also said Mr Jennings’ case would not “open any floodgates” to more claims now that written consent would no longer be an obstacle it once was for loved ones seeking to have kids with their late partner’s embryo or sperm.
The court was told accountant Fern-Marie underwent three unsuccessful cycles of IVF treatment in 2013 and 2014.
She conceived naturally in 2015 and 2016 but tragically suffered two miscarriages.
The couple then had further IVF in 2017 and 2018 after rem-mortgaging their home in Highbury, North London, to pay for the treatment.
The second proved successful and Fern-Marie fell pregnant in late 2018.
Tragically she developed complications at 18 weeks which resulted in a uterine rupture.
Fern-Marie passed away the following February and one embryo was kept in storage.
In a witness statement before the judge, Mr Jennings said he did not recall either him or his wife having any “negative emotions towards parenthood in the event of using a surrogate, donated embryos or adopting a child”.
He added: “Our emotional journey was going from the helplessness of the infertility compounded by the feeling of unjustness given all the other medical issues already faced.
“We eventually got to the position of accepting that having given IVF our best shot, this would be the last time and the final embryo would be saved for surrogacy.”
He also said he had discussed with his wife what should happen if either of them died and that the twins should be saved if there was a choice between her and them.
The judge also considered evidence from Ms Choya’s family, whom she described as speaking “with one voice” about what she would have wanted.
This included evidence from one of her four sisters who said she “wholeheartedly” believes Ms Choya would want Mr Jennings to use the frozen embryo in treatment with a surrogate.
