A man whose wife died while pregnant with twins after fertility treatment is fighting for the right to use their last remaining frozen embryo to try to have a baby with a surrogate, in a groundbreaking legal case.
The Guardian reports that Ted Jennings, 38, from London, says he is certain that this is what his wife, Fern-Marie Choya, would have wanted. But the fertility regulator says this would be unlawful because Choya did not consent to posthumous surrogacy before her sudden death in 2019, while pregnant with twin girls.
The case, the first involving posthumous surrogacy, raises fresh ethical questions about the right to pursue parenthood if one partner dies after fertility treatment. Jennings says the clinic did not give the couple enough opportunity to consent to this unforeseen scenario, although he had been asked for permission for his wife to pursue posthumous conception in the event of his own death.
The fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), while sympathising with Jennings, said in the absence of written consent it would not be lawful to use the remaining embryo (stored at the Centre of Reproductive and Genetic Health in London) in treatment with a surrogate.
Peter Thompson, HFEA chief executive said. “The law is clear that posthumous use of an embryo with a surrogate can only take place with signed written consent. There is no written consent in this case.”
The couple, both originally from Trinidad, met in 2007 in London and married two years later. After five years of fertility treatment and two miscarriages following ectopic pregnancies, they conceived in 2018 and learned they were expecting twin girls. But 18 weeks into her pregnancy, Choya suffered a uterine rupture, a severe pregnancy complication, and died after massive blood loss.
Before IVF treatment, Jennings gave consent for the embryos being used in the event of his death, but Choya was not asked the equivalent question. Instead, her form stated that she should seek more information from the clinic “if you wish your eggs or embryos to be used in someone else’s treatment if you die”, which Jennings’ legal team argue appeared designed to cover a different scenario.
By contrast, the standard consent forms given to same-sex female couples undergoing IVF treatment explicitly ask about posthumous surrogacy, reports The Guardian.
The court heard that surrogacy was the couple’s “plan B” if the IVF treatment were unsuccessful, and that one of Choya’s sisters had volunteered to act as a surrogate, but they had decided they would prefer a surrogate based in the UK if they went down this route. Jennings said he would not be pursuing treatment unless he was absolutely sure it would have been his late wife’s wish.
His lawyer, James Lawford Davies, said: “It is clear Fern would have wanted Ted to be able to use this embryo, and that she would have done whatever was required to facilitate this. Ted’s wish to use the embryo should not be frustrated because of a missing tick in a box.”
The case will now be determined by a family division judge.
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Medical assessment to be required for surrogacy agreements – Gauteng High Court
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Successful birth after womb is transplanted from deceased donor