A widower, Ted Jennings (aged 38), has today been granted permission by the High Court in London to use the last embryo created with his now deceased wife in a surrogacy arrangement, despite the fact that he did not have her express written consent.

This tragic story of a couple battling with infertility, who had been through the process of IVF, serves as a stark reminder of the stringent rules that apply in England and Wales to surrogacy arrangements. As discussed on The Surrogacy Landscape Podcast, the rules relating to surrogacy arrangements in this country are strict and, some might say, have not kept up with the developments in medical science over recent years. One of the, usually less controversial, rules is that written consent of the parties to a surrogacy arrangements is required.

In this case, however, Ted's wife Fern-Marie Choya, died "tragically and without warning" when she was 18 weeks into her pregnancy with twins conceived via IVF. Following the couple's IVF treatment, there was one embryo remaining at the time of her death. Her husband therefore sought to use that embryo in a surrogacy arrangement, something which had been previously discussed between them whilst she was alive, however the problem he encountered was that she had not provided written consent to a surrogacy arrangement taking place.

Mrs Justice Theis commented that she was "satisfied" that the mother, on the evidence, consented to the use of the embryo in the event of her death. She was critical of the Human Fertilisation and Embryology Authority ('HFEA') for the "far from clear" form completed by Ms Choya during the IVF process, highlighting that the HFMA "may want to consider" whether the form should be reviewed. "In this limited situation" the judge was content to dispense with the requirements for written consent.

This case highlights the complexities in issues regarding surrogacy and fertility treatment. Because of the nature of these difficult, and often harrowing cases, application of the law must strike the correct balance between flexibility and achieving certainty for all parties involved.

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