A man whose wife died while pregnant with twins after fertility treatment is fighting for the right to use their last remaining frozen embryo to try to have a baby with a surrogate, in a groundbreaking legal case.
Ted Jennings, 38, from London, says he is certain that is what his wife, Fern-Marie Choya, would have wanted. But the fertility regulator says this would be unlawful because Choya did not consent to posthumous surrogacy before her sudden death in 2019, while pregnant with twin girls.
The case, the first involving posthumous surrogacy, raises fresh ethical questions about the right to pursue parenthood if one partner dies after fertility treatment. Jennings says the clinic did not give the couple sufficient opportunity to consent to this unforeseen scenario, although he had been asked for permission for his wife to pursue posthumous conception in the event of his own death.
“It’s not something you would think of when trying to create a life,” Jennings said before the hearing in the family division of the high court in London on Thursday. “You’re thinking of the future, not hoping for the worst possible outcome, and therefore it is up to someone else to present you with the worst-case scenario and ask you if you are prepared for it.”
The fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), said it sympathised with Jennings but that in the absence of written consent it would not be lawful to use the remaining embryo, which is stored at the Centre of Reproductive and Genetic Health in London, in treatment with a surrogate.
“This is a tragic case and we have every sympathy for Mr Jennings,” Peter Thompson, HFEA chief executive said. “The law is very clear that posthumous use of an embryo with a surrogate can only take place with signed written consent. There is no written consent in this case.”
The couple, both originally from Trinidad, met in 2007 in London, where Jennings works in investment banking, and married two years later. After five years of fertility treatment and two miscarriages following ectopic pregnancies, they conceived in 2018 and were overjoyed to be expecting twin girls.
But 18 weeks into her pregnancy, Choya suffered a uterine rupture, a severe pregnancy complication. She was taken to hospital by ambulance but died, aged 40, after massive blood loss.
Before IVF treatment, Jennings gave consent to the embryos being used in the event of his death, but Choya was not asked the equivalent question. Instead, her form stated that she should seek more information from the clinic “if you wish your eggs or embryos to be used in someone else’s treatment if you die”, which Jennings’ legal team argue appeared designed to cover a different scenario.
By contrast, the standard consent forms given to same-sex female couples undergoing IVF treatment explicitly ask about posthumous surrogacy.
The court heard that surrogacy was the couple’s “plan B” if the IVF treatment was unsuccessful, and that one of Choya’s sisters had volunteered to act as a surrogate, but they had decided they would prefer a surrogate based in the UK if they went down this route.
Speaking before the hearing, Jennings said that he had originally brought the challenge because he did not want the choice to be “taken away” from him through a “bureaucratic oversight”. “But now, as a few more years have passed and I’ve thought about it a bit more, I definitely know that I want to have this child,” he said.
In a statement, the court heard Jennings would not be pursuing treatment unless he was absolutely sure it would have been his late wife’s wish. “She was my everything and I was always with her,” he said. “Just as I know she would have wanted me to raise the twin girls to the best of my ability, I know she wants me to try to have our child with our last remaining embryo.”
James Lawford Davies, Jennings’ lawyer and a partner at Hill Dickinson, said: “It is clear that Fern would have wanted Ted to be able to use this embryo, and that she would have done whatever was required to facilitate this. Ted’s wish to use the embryo should not be frustrated because of a missing tick in a box.”
Thompson said: “The last thing the HFEA wishes to do is to stand in the way of Mr Jennings, but we have to regulate in accordance with the law. As the law stands, there is nothing the HFEA could do to remove the need for written consent in such cases.”
The case will now be determined by a family division judge, Mrs Justice Theis.