High Court judgment paves way for posthumous surrogacy

A judgment in the family division of the High Court has paved the way for a widower to use the last remaining embryo created with his late wife to have a child with a surrogate mother.

Ted Jennings and his wife, Fern-Marie Choya, agreed that their embryos could be used should Mr Jennings pass away. An equivalent agreement was not made in the event of Ms Choya’s passing, which tragically occurred in 2018 due to pregnancy complications.

Jennings sought a declaration from the Court that he could use the embryo; this was opposed by the Human Fertilisation and Embryology Authority (HFEA) on the basis of a lack of written consent.

Handing down her judgment in favour of Jennings, High Court judge Mrs Justice Theis said she could “dispense with the requirement for written and signed consent in this limited situation”. She continued:

“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.”

Mrs Justice Theis also considered the “far from clear” IVF process which did not give her a sufficient chance to give consent in writing. As well as this, she said that there would be a “significant, final and lifelong” interference with Jennings’ “right to respect to become a parent” if she did not grant his request.

Jennings said in a witness statement that neither him nor his wife had any “negative emotions towards parenthood in the event of using a surrogate, donated embryos or adopting a child”. Choya’s family also supported Jennings’ request, with one of Choya’s sisters saying that she “wholeheartedly” believed her late sister would have wanted Jennings to use the embryo.

James Lawford Davies, Jennings’s lawyer, said:

“It was clear that this is what Fern would have wanted and this very thorough judgment allows her wishes to be respected.”

Mrs Justice Theis said that, in light of this judgment, the HFEA “may want to consider” their form in relation to posthumous use of an embryo.

Subscribe to the Today’s Family Lawyer newsletter to receive industry updates, news and analysis