Ted Jennings and his wife, Fern-Marie Choya, had spent years trying to have children and sought fertility treatment, but Choya died suddenly while pregnant with twin girls in 2019. The Fertility Regulatory Authority, the Human Fertility Authority and Embryology (HFEA). rejected Jennings’s request to be able to use his last frozen fetus to start a family because Choya had not given written consent for posthumous surrogacy. However, on Wednesday, the family court of the Supreme Court ruled that Jennings could use the fetus, in what could be the first case of postpartum surrogacy in the UK. The couple had not been given the opportunity to consent to this scenario, the court found, in a decision that will put pressure on the HFEA to reconsider the consent procedures. In her judgment, Ms Justice Theis, a Family Court Judge, said: to be able to use the fetus created by their partner in treatment with a brace in case of her death. “This is being considered in a context where, in my judgment, she was not given relevant information and / or sufficient opportunity to discuss it with the clinic.” Fern-Marie Tsoya. Photo: Family / PA The couple, both from Trinidad, met in London and got married in 2009. After five years of fertility treatment and two miscarriages after an ectopic pregnancy, they conceived in 2018 and were expecting twin girls. But 18 weeks after her pregnancy, Choya suffered a serious pregnancy complication and died at the age of 40. The couple had given their consent to use the embryos in the event of Jennings’s death, the heart of the court as proof last month, but Choya was not asked the question. Instead, her form stated that she should seek more information from the clinic “if you wish your eggs or embryos could be used to treat someone else if you die”. The court ruled that it was not “very clear” how this related to postpartum surrogacy and suggested that the HFEA “may want to consider whether the form needs to be revised to provide the necessary clarity and prevent a recurrence of this situation”. . Jennings’s lawyer and Hill Dickinson associate, James Loford Davis, said: “I am delighted that the court has ruled in favor of Ted and that he can now proceed with surrogacy. “It was clear that this was what Fern wanted, and this very thorough judgment allows her wishes to be respected.” In a statement, the HFEA said: “This is a tragic case and the HFEA continues to have every sympathy for Mr Jennings. The act of the parliament governing fertility and embryology in the United Kingdom makes it clear that in such cases a signed written consent is always required. The danger today is that this decision will undermine this position and reduce the protection it provides to an individual’s explicit wishes regarding the use of his or her embryos after death. We will carefully consider the decision before deciding whether to appeal. “
