Rich Vaughn Blog: UK Mom-Daughter Cryopreservation Ruling

UK Mom’s Quest to Fulfill Dying Daughter’s Wish Shows Importance of Cryopreservation Agreement

The UK Court of Appeal this week took steps to clear the way for a mother to help carry out the last wishes of her dying daughter to be a mother.

From the UK Court of Appeal decision:

The appellants’ daughter, A, was only 21 years old when she was diagnosed with cancer. She had been to University and had a good job. She came from a loving family and was “beautiful, strong, intelligent and funny.” She died six years later on 12 June 2011. She spent most of her last five years in hospital. She wanted to have IVF treatment in 2005 but was too ill for this purpose. Then she asked for her ovaries to be transplanted in her mother and then in 2008, during a period of remission, she was well enough to undertake treatment (in considerable pain) for the removal and storage of three eggs. She was very determined to have this treatment: there is no suggestion in the papers that she was under any pressure from anyone else to do this. She had had a boyfriend, but she had no partner at any relevant time. Her mother suggested that she would if necessary carry children for her [daughter], and A accepted this with gratitude. A’s mother’s evidence to the Committee was that she was certain that this was her expectation of how her eggs could be used after her death.

But following the daughter’s death in 2011, the UK clinic that had performed the cryopreservation procedure and has custody of the daughter’s frozen eggs declined to perform the procedures in order for the mother to carry the daughter’s child. As a result A’s mother and father petitioned for the eggs to be released to the mother and transported to the United States, where they would be fertilized using donated sperm.

As reported July 5 by The Washington Post, in 2014 an independent regulatory body, the UK Human Fertilisation and Embryology Authority, later affirmed by the UK High Court, denied the parents’ petition on the basis that the daughter had not specifically stated her wishes in writing: that she wanted the eggs released and transported to the U.S., that she wished to use a sperm donor, and that she wanted her mother to carry and raise her child.

But as the appellate judge explained in her decision this week, the daughter, who did sign a form indicating her wish to store her eggs for future use, was never informed of the need for such specific agreements. In a nutshell, as stated by our colleagues, Natalie Gamble Associates, who represented the mother in the appellate case, “The family thought that all the paperwork required was completed and in place.”

When storing the eggs, A completed a form which asked what she wanted to happen in the event of her death.  She wrote YES to the eggs being stored ‘for later use’, and NO to the eggs ‘being allowed to perish’.  She did not specify in writing how she wanted the eggs to be used after her death, but she was never given any additional forms by the clinic where her eggs were stored, and at the time of storage (and until her death) she was single.

In commenting for The Washington Post story this week, I noted that UK law is quite strict in regard to posthumous reproduction and different in viewpoint than U.S. law: 

“In the U.S., we view things more along the lines of the right to procreate, and assisted reproduction is an extension of the right to procreate. In Europe, the prevailing notion is what’s in the best interest of the child.”

Although there’s no U.S. federal law that determines how a deceased person’s gametes (or reproductive cells) can be used, 11 U.S. states have laws addressing the issue.

The UK Court of Appeal ruled that the original regulatory body and the High Court were in error in denying the mother’s petition to take the eggs to the U.S., and in a decision written by Lady Justice Arden explains its rationale:

Before A received this treatment, she signed a form produced by the centre (“the Centre”) providing the treatment. This form contemplated that she would be executing the form with a partner, so it was not appropriate in all respects. She consented to the mixing of her eggs by ticking the box marked “my eggs” but did not tick the box “Partner’s sperm” or “Donor sperm.”…

... it was unclear why the Committee thought A needed to know about the risks to her mother as that would be a matter for her mother after A’s death. Nor was it clear why A could not have simply trusted her mother to make the best decision for her on legal matters. … A’s consent to posthumous use is clear from the form of consent that she signed. It was unreasonable to expect her to do more when she was battling for 5 years with what was to be a terminal illness. … [Attorney for the appellant] submits that it is improbable that A did not consent to the use of the donor sperm. A was single, she could only have been thinking of fertilisation by a sperm donor. … The Committee was wrong to attach any importance to the fact that she had not consented to the export of her eggs. [Attorney] submits that treatment outside the UK could not have been in her contemplation and was not material to her. In any event the export was desired so that her mother could have treatment in the US.

The arduous legal process required of the mother to carry out her dying daughter’s wish serves as a precautionary tale. The practice of cryopreservation is growing by leaps and bounds, offering individuals undergoing harsh medical treatments such as radiation, soldiers bound for combat, and professionals who need to put childbearing on hold for career reasons the potential of someday becoming biological parents. But life is uncertain, and none of us know what tomorrow brings. As the attorneys of Natalie Gamble Associates emphasize in their blog on this case, having clear, written instructions about the disposition of frozen eggs or sperm in a range of circumstances is critically important in ensuring your wishes are carried out, potentially saving you or your loved ones unimaginable future heartache and disappointment.

 

 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
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Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
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Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.