A mother cannot use her dead daughter's frozen eggs to give birth to her own grandchild, the High Court in London ruled today in a case believed to be the first of its kind in the UK.
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 only child to a US fertility treatment clinic to be used with donor sperm.
The Human Fertilisation and Embryology Authority (HFEA), the fertility regulator, had refused to allow her to take the eggs out of storage, saying the deceased daughter, who died of cancer at the age of 28 in June 2011 had not given full consent.
The case was believed to be the first of its kind, the BBC reported.
The HFEA decided in 2014 there was insufficient evidence to show the daughter wanted the eggs used in the way her parents suggested after her death.
Although the daughter consented for her eggs to be stored for use after her death, she did not fill in a separate form outlining how she wished them to be used.
The High Court judge Justice Ouseley 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."
He also declared there had been no breach of the family's human rights.
Jenni Richards, appearing for the parents, asked the judge to rule the HFEA was wrong not to allow access to the eggs. She argued it was a "disproportionate interference" with the family's human rights.
The daughter, "A", had her eggs frozen after being diagnosed with bowel cancer at the age of 23.
Her parents say she asked her mother to "carry my babies" once she knew she had no hope of surviving the illness.
Mrs M said her daughter had told her: "I didn't go through IVF to save my eggs for nothing.
"I want you and Dad to bring them up, they will be safe with you."
Mrs M's statement added: "She was clear that she wanted her genes to be carried forward after her death.
Catherine Callaghan, appearing for the HFEA, said its decision was neither irrational nor disproportionate and there was no clear evidence "A" had expressed the wish for her mother to carry her child in the event of her death.
