Does the Right to Family Life include a grandparent using their deceased daughter's eggs to create a child through surrogacy?
This question arose in a desperately sad case that came before the President of the Family Division, Sir Andrew McFarlane in September 2024 reported as G v Human Fertilisation & Embryology Authority & Anor [2024] EWHC 2453 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2024/2453.html. It is an example of how the strict rules to enable the posthumous use of gametes is regulated and controlled by HFEA and underlines that there is no discretion in the application of those rules. The Judgment includes a review of cases where a surviving spouse has been able to proceed posthumously if the regulations have been complied with including the requirement that one of the intended parents is the biological parent of the child, a criterion that a grandparent cannot fulfil.
Case Background
This case involves 'G', a mother seeking to use the frozen eggs of her deceased daughter 'N', who died from breast cancer in June 2023. Before undergoing chemotherapy, N had 20 eggs harvested and frozen. G applied to the High Court for a declaration that it would be lawful to use N's eggs with donor sperm in a surrogacy arrangement, with G raising any resulting child. The Human Fertilisation and Embryology Authority (HFEA) and Secretary of State for Health and Social Care intervened in the proceedings.
Legal Framework
The Human Fertilisation and Embryology Act 1990 (HFEA 1990) requires written consent for the posthumous use of gametes. Schedule 3 of the Act establishes that consent must be in writing, signed, and given after proper counselling and information. The statute creates a "strict regime of control" with no flexibility for discretionary exceptions, though courts have previously intervened in limited circumstances using the Human Rights Act 1998.
Evidence of Consent
N signed forms in December 2022 for egg collection and storage but not for posthumous use, which required additional forms. The clinic informed N in writing that she must notify them of any changes to her wishes. G provided evidence that in her final months, N mentioned wanting a surrogate mother and asked G to "take care of my children" if anything happened to her. On the day before her death, N reportedly told G, "Mum, I want a surrogate mother" and "I am afraid I might not make it." Medical records indicated N lacked capacity on her final day.
Legal Arguments
G's legal team argued that she and N were engaged in a "joint parenting project" that engaged Article 8 rights (right to private and family life) under the European Convention on Human Rights. They contended that N's verbal consent should be sufficient given the circumstances. The HFEA and Secretary of State argued that the statutory scheme permits no discretion, that written consent is fundamental, and that G has no Article 8 rights in this context, referring to the ECtHR case of Lanzmann v France which rejected grandparental rights to continue genetic lineage.
Judgment
Sir Andrew McFarlane P dismissed the application on both factual and legal grounds. He found that N's statements to G did not constitute sufficiently clear informed consent for the specific arrangement proposed, which would involve a donor who was not N's partner, a surrogate from the local community, and G adopting the resulting child. Legally, he rejected the argument that G had Article 8 rights based on a "joint parenting project," concluding that N's Article 8 rights died with her and G had no independent rights in this context.
Conclusion
While expressing sympathy for G's position and her profound loss, the President found that the application failed on both factual evidence of N's informed consent and the legal basis for allowing exceptions to the statutory scheme.