Mother loses battle to have dead daughter’s baby

A judge was told the cancer victim daughter, who can only be referred to as “A” for legal reasons, was desperate to have children and asked her mother to “carry my babies”.

The unnamed 59-year-old mother and her husband, 58, who were referred to as “Mr and Mrs M”, challenged an independent regulator’s refusal to allow them to take the eggs of their “much-loved and only child” to a US fertility clinic to be used with donor sperm.

The Human Fertilisation and Embryology Authority (HFEA) said the eggs could not be released from storage in London because A did not give her full written consent before she died at the age of 28 in June 2011.

Mr Justice Ouseley, sitting in London, was told A would have been “devastated” if she had known her eggs could not be used. But the judge yesterday ruled the HFEA had been entitled to find the daughter had not given “the required consent”. He declared there had been no breach of the family’s human rights.

He 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.”

Refusing permission to appeal against his ruling, the judge said he had “much sympathy” for the parents but was not persuaded an appeal would have any prospect of success.

It is still open to the couple to ask the Court of Appeal itself to hear their case, if they so decide.

The judge ordered them to pay £10,000 towards the HFEA’s legal costs.

It is thought that if the case had been won, Mrs M could have become the first woman in the world to become pregnant using her dead daughter’s eggs.

A HFEA spokeswoman said: “This is a very sad case, and the ruling must be heartbreaking for the couple. The case was about whether the couple’s daughter had given fully informed consent for her mother to use her eggs after her death.

“Our committee considered this case on three separate occasions, considering very carefully the new evidence given each time, but decided that there was not the kind of fully informed consent required by the law.

“The judge has decided that, as distressing as this is for the couple involved, the committee’s decision was correct.”

In a hearing in May, Mrs M told the court that A had “suffered terribly” but was clear “she wanted her genes to be carried forward after her death” and regarded the eggs as “living entities in limbo waiting to be born”.

She had her eggs frozen following her bowel cancer diagnosis at the age of 23, hoping she would recover.

Later she accepted she would never see her child, and she died in June 2011 aged 28.

Her parents want to take the eggs to New York, where a clinic has indicated it is willing to provide fertility treatment at an estimated cost of up to £60,000.