A 38-year-old widower has won a landmark legal case that grants him the right to have a child with a surrogate using the last remaining fetus created with his late wife.
Ted Jennings and his wife, Fern Marie Choa, spent years trying to conceive and sought fertility treatment, but Choa died suddenly while carrying twins in 2019. Fertility regulator, Human Fertilization and Embryology Authority (HFEA), denied Jennings’ request to be able to use the last fetus Frozen to start a family because Chua did not provide written consent to surrogacy after her death.
But on Wednesday, the High Court’s Family Circuit ruled that Jennings could use the fetus, in what could be the UK’s first posthumous surrogacy case. The court found that the couple had not been given sufficient opportunity to consent to this scenario, in a ruling that would pressure the HFEA to review the consent procedure.
In her ruling, Ms Justice Theiss, Family Division, said: “I am satisfied that, in the circumstances of this case, the Court could conclude from all the evidence available that Ms Chua would have agreed that Mr Jennings was able to use the fetus created by the partner for treatment with A surrogate in the event of her death. This is taken into account in the context in which, in my opinion, she has not been given relevant information and/or sufficient opportunity to discuss it with the clinic.”
The couple, both from Trinidad, met in London and married in 2009. After five years of fertility treatment and two miscarriages after an ectopic pregnancy, they got pregnant in 2018 and were expecting twins. But after 18 weeks into her pregnancy, Choa experienced serious pregnancy complications and died at the age of 40.
The couple agreed to use the embryos in the event of Jennings’ death, the heart of the court in evidence last month, but Choa was not asked the corresponding question. Instead, her application form stated that she must request more information from the clinic “if you wish to have your eggs or embryos used for someone else’s treatment if she dies.” The court ruled that it was “far from clear” how this relates to posthumous surrogacy, and suggested that the HFEA “may wish to consider whether the form should be revised in order to provide the required clarity and avoid this situation from happening again”.
James Lawford Davis, Jennings’ attorney and partner at Hill Dickinson, said: “I am delighted that the court found in Ted’s favor and that he can now proceed with surrogacy treatment. It was clear that this was what Verne wanted and this very comprehensive ruling allows her wishes to be respected.”
In a statement, the HFEA said: “This is a tragic case and the HFEA continues to sympathize with Mr Jennings. The Act of Parliament governing fertility and embryology in the UK is clear that signed written consent is always required in such cases. The danger today is that this decision will undermine this position, and reduce of the protection it affords to a person’s express wishes about the use of his embryos after his death. We will consider the judgment carefully before deciding on his appeal.”