In today’s family law article, we will look at an unusual case which made headlines across the internet. It presents a complex moral issue for the parties but one which offers hope and optimism for the claimant involved as well as the few who similar situations in the future.
The landmark ruling gives widower, Ted Jennings, the right to use the last remaining embryo he created with his late wife to try for a baby through surrogacy, despite her lack of written consent.
Keep reading to learn more about this fascinating case involving what could be the UK’s first case of posthumous surrogacy.
Background
Thirty-eight-year-old Ted Jennings had spent a number of years trying to have children with his late wife, Fern-Marie Choya but had so far been unsuccessful. They sought fertility treatment, and but sadly Choya died while pregnant with twin girls conceived by IVF in 2019 after suffering a uterine rupture.
Originally from Trinidad, the couple met in London and married in 2009. They had tried for several years to have a baby but had been unsuccessful until 2018 and had two miscarriages during the intervening years. Following Choya’s death, Jennings tried to use the couple’s last frozen embryo to start a family, however this was rejected by the fertility regulator, the Human Fertilisation and Embryology Authority (HFEA). This is because Choya didn’t give her prior written consent before she died, a requirement for using frozen embryos in surrogacy posthumously.
The case
Although the form provided by the Human Fertilisation and Embryology Authority makes it clear that a man’s consent is required for a partner to use their embryos after his death, the woman’s form did not provide a provision for the same occurrence in the event of her own death. While Jennings accepted that his wife did not give the written consent which is usually required in order for the couple’s embryos to be used, he argued that they were simply not given the information or opportunity to be able to give written consent.
Jennings told the court that he and his wife had decided that they would keep the last embryo for surrogacy in the event that their IVF treatment was unsuccessful. The court ruled that it should not uphold the requirement in Sch 3 of the Human Fertilisation and Embryology Act 1990 to require written and signed consent. The conclusion which was given about Ms Choya’s consent was supported by written evidence from both her family and her friend.
In her ruling, Justice Theis decided that a refusal to allow Jennings to use the embryo for surrogacy would be a disproportionate interference with Jennings’ right to a family life under Article 8 of the European Convention of Human Rights. The ruling also states that Section 3 of the Human Rights Act requires the court, “so far as is possible, to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights.”
The court ruled that in future, the Human Fertilisation and Embryology Authority “may want to consider whether the form should be reviewed in order to provide the clarity required and avoid this situation occurring again”.
Our comments
This is obviously a complex legal case, representing the first of its kind in the UK at least, but one which many will agree reached a satisfactory conclusion considering the beliefs of Mr Jennings’ late wife and Mr Jennings himself.
Article 8 of the European Convention on Human Rights (ECHR) was of clear importance in this particular case. Also instrumental was Section 3 of the Human Rights Act, which requires the court to interpret primary legislation in a way which is compatible with the ECHR. The influence of the ECHR has been of much debate following the replacement of the Human Rights Act with a proposed British Bill of Rights by the Justice Secretary and Deputy Prime Minister, Dominic Raab. With the Bill of Rights specifically targeting Article 8, it throws into question how similar cases like this will be dealt with if the Human Rights Act was replaced.
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