As it is National Surrogacy Week, an event raising awareness of UK surrogacy, I wanted to highlight the recent landmark case of Jennings v HFEA [2022] EWHC 1619 (Fam).

Ted Jennings from London succeeded in his fight to have the right to use the last remaining frozen embryo created by himself and his deceased wife, Fern-Maria Choya, to try and conceive through surrogacy.

When someone freezes eggs, sperm or embryos, they provide written and signed consent which confirms what they want to happen if they die. This sets out whether they can continue to be stored or used. Timing is therefore critical, as once that person has died, it is very difficult to prove their intentions if there are issues with the consent they have given, leaving those left behind in a very difficult position if they wish to continue storing or use the gametes or embryos in treatment.

Mr Jennings explained to The Family Division of the High Court that surrogacy was the couple’s “plan B” if IVF treatment was unsuccessful. A difficulty that he faced was that before his wife’s sudden death in 2019, she had not expressly consented to their embryos being used to conceive through surrogacy in the event of her death. Although Mr Jennings was expressly asked to confirm his position in respect of post-death storage and use, his wife was not asked an equivalent question. Instead, the information presented to her was more ambiguous and simply posed that she should seek more information from the clinic if she wanted her eggs or embryos to be used in someone else’s treatment after her death. Mr Jennings’ case was that they were not given sufficient opportunity to provide the required consent and in any event, his wife’s intentions were clear.

The Judge who decided the case, Mrs Justice Theis, said “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.”

This was the first case in England and Wales in which a father has been given permission by the Court to pursue posthumous surrogacy with embryos made with his deceased partner’s eggs. Thankfully, Mr Jennings can now move forward with his surrogacy plans.

Mrs Justice Theis also concluded that the HFEA (the UK’s fertility regulator) should review its consent forms so that they deal with the death of any partner and what the outcome would be for any remaining embryos.

Read more about Irwin Mitchell's expertise in Family Law.