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Investment manager Ted Jennings, of Highbury, north London, has asked Mrs Justice Theis to rule that it would be lawful for him to use the embryo, which was created in 2018 and has been stored, “in treatment with a surrogate mother”.
Lawyers representing the Human Fertilisation and Embryology Authority said Mr Jennings’ application should be dismissed.
They argued that it would not be lawful to use the embryo because Mr Jennings’ wife, accountant Fern-Marie Choya, who died in 2019, aged 40 after becoming pregnant, had not provided written consent.
The judge considered Mr Jennings’ application at a public hearing in the Family Division of the High Court in London on Thursday and is expected to deliver a written ruling in the near future.
Jenni Richards QC, who led Mr Jennings’ legal team, told the judge that Mr Jennings and Ms Choya, who both moved to Britain from Trinidad, had married in 2009.
She said they had struggled to conceive naturally and underwent three cycles of IVF treatment in 2013 and 2014 without success.
Ms Choya had conceived naturally in 2015 and 2016 but both pregnancies ended in miscarriage.
The couple had undergone further IVF cycles, in 2017 and 2018, and re-mortgaged their home in order to afford private treatment.
Ms Richards said a positive pregnancy had been confirmed in late 2018.
She said Ms Choya had developed complications with her pregnancy at 18 weeks, which resulted in a uterine rupture, and died in February 2019.
Ms Richards said one embryo, the subject of the application, remained in storage.
She said the “issue” related to a legal “requirement” that consent “be recorded in writing and signed by the person giving it”.
“… the evidence is that Ms Choya would have wanted Mr Jennings to be able to use their partner-created embryo in treatment with a surrogate in the event of her death,” said Ms Richards in a written case outline.
“In all the circumstances, it can, and should, be inferred that Ms Choya would have provided written consent to Mr Jennings being able to use their partner-created embryo in treatment with a surrogate in the event of her death had she been given the opportunity to do so.”
Ms Richards added: “… Ms Choya had no opportunity, through no fault of her own, to provide that consent in writing.”
She said preventing Mr Jennings using the embryo would be a “significant interference” with his human right to respect for private and family life and prevent him from fulfilling the couple’s wish to have a child.
Kate Gallafent QC, who led the Human Fertilisation and Embryology Authority’s legal team, argued that without written consent it would not be lawful to use the embryo.
She said the authority was sympathetic and told the judge that its “sole interest” was to “promote compliance” with a “statutory scheme”.
“Mr Jennings seeks a declaration from the court that it is lawful to use an embryo created using his gametes and those of his late wife Ms Choya in the treatment of a surrogate,” she told the judge in a written case outline.
“However, it is common ground between the parties that Ms Choya did not provide written consent to the embryo being used by Mr Jennings in treatment with a surrogate in the event of her death.”
She said the authority’s “primary submission” was that: “In the absence of such written consent, it is not lawful to use the embryo in treatment with a surrogate.”
Ms Gallafent said the requirement of written consent was an “express statutory condition” set out in the 1990 Human Fertilisation and Embryology Act and “central to the legislative regime”.
Mrs Justice Theis said she aimed to deliver a written ruling in the near future.