Woman, 60, fights for right to give birth to her dead daughter's baby using her frozen eggs

Two senior judges have allowed a 60-year-old woman to continue to fight an extraordinary legal battle that may allow her to give birth to her dead daughter’s baby. The woman, who would be at least 61 by the time the child is conceived, has been given the right to appeal against a High Court decision that there was not enough evidence to suggest that the daughter would have wanted her mother to give birth to the baby. The case has dragged through the courts for five years and in a judgment statement read out by Lord Justice Treacy at the Court of Appeal yesterday judges said the woman had ‘an arguable case with a real prospect of success’. A British woman who wants to use her dead daughter’s frozen eggs to give birth to her own grandchild has persuaded judges at the Court of Appeal in London to allow her to continue a five-year legal battle Victory: A woman who wants to use her dead daughter's frozen eggs to give birth to her own grandchild has persuaded judges at the Court of Appeal in London to allow her to continue her legal battle If she and her 59-year-old husband are granted permission to use the frozen eggs, which are stored in a London clinic, it is believed that it will be the first time in the world that a grandmother would give birth to her dead child’s baby. No date has been set for the Appeal Court hearing. Once that is held it is possible that the losing party could then take the matter to the Supreme Court, further lengthening the already prolonged legal wrangling. The couple’s daughter, who cannot be named for legal reasons and was referred to as ‘AM’ in court proceedings, died aged 28 in 2011 but had frozen her eggs five years previously when she was diagnosed with bowel cancer. Her parents, referred to as Mr and Mrs M, say their daughter wanted her mother to carry a child in the event that she did not survive. However, the Human Fertilisation and Embryology Authority (HFEA) refused to release the eggs because she had not provided full written permission. If she wins the next hearing, she will be around 61 (at least) when she gets pregnant. It might eventually be rubber-stamped as legal by the courts — but is it right? Lord Justice Treacy and Lord Justice Floyd today ruled at the Court of Appeal in London (pictured) that the woman and her 59-year-old husband should have permission to challenge a decision to dismiss their case In their judgment Lord Justice Treacy and Lord Justice Floyd both admitted they had been ‘doubtful’ that the mother would have any prospect of winning the case but said they were swayed following ‘clear and persuasive’ arguments from the family’s barrister. The lawyer told the judges that ‘all available evidence’ indicated that AM had wanted her mother to carry the grandchild. But Simon Calvert, a spokesman for the Christian Institute, said: ‘The UK has some of the most liberal laws on fertility and embryology in the world so it must tell you something that even under our incredibly liberal regime this has not been allowed. ‘You have to ask yourself what about the child? What impact would it have on any child born to know that they were conceived in this way using a dead woman’s eggs carried by their own grandmother? ‘What would be the psychological effects on the child? Is it really fair on the child? Those are the questions we should be asking ourselves.’ Lord Justice Treacy said the grandmother had a chance of success in the case In previous hearings, it was claimed that AM had told her mother on her death bed: ‘I want you to carry my babies. I want you and dad to bring them up. They will be safe with you. I could not have had better parents.’ Mrs M said her daughter had ‘wanted her genes to be carried forward after her death’ and had regarded the eggs as ‘living entities in limbo waiting to be born’. The matter came to court because of the HFEA’s insistence on needing written permission from the daughter. In a High Court hearing last year Mr Justice Ouseley was told that AM, who was single at the time of her death, would have been ‘devastated’ if she had known the eggs would never be used but he supported the HFEA’s decision, adding that it was not in breach of the family’s human rights. The judge said: ‘I must dismiss this claim, though I do so conscious of the additional distress which this will bring to the claimants, whose aim has been to honour their daughter’s dying wish for something of her to live on after her untimely death.’ The court heard that the family’s plan had been to take AM’s eggs to a treatment centre in New York so that they could be fertilised using sperm from a donor and implanted into Mrs M at a cost of £60,000. An HFEA spokesman said: ‘We understand why Mr and Mrs M would wish to carry out what they see as their daughter’s wish. ‘However, we considered their application on three separate occasions, concluding each time that the consent given did not satisfy the requirements of the law. Our decisions were then reviewed by a High Court judge, who supported our view. ‘We will read today’s decision to grant appeal carefully. Out of respect for Mrs M and her family, and for the ongoing legal process, it would be inappropriate for us to comment further at this time.’ WHAT HAPPENS WHEN YOU CHOOSE TO FREEZE YOUR EGGS? The use of frozen eggs is a relatively new development. Very few babies have been born in the UK after treatment, using a patients' own frozen eggs - though more have been born from donor eggs. To help boost egg production, fertility drugs are used to stimulate the ovaries to produce follicles, which contain the eggs. The developing follicles are monitored and when they are large enough, they are carefully emptied to collect the eggs they have produced. They are collected while a patient is under sedation or general anaesthetic. Women often choose to freeze their eggs if they are undergoing chemotherapy for cancer, which can affect fertility. Concerns over fertility declining with age, is also a reason women choose the procedure. Before a woman's eggs can be frozen, a series of steps have to be taken: A clinician will explain the process, including the risks. The clinic should also give the option of speaking to a counsellor; you will be screened for infectious diseases, including HIV and hepatitis B and C; you will need to give written consent for your eggs to be stored; eggs are collected in the same way as for conventional IVF; the freezing solution, cryoprotectant is added to protect the eggs when they are frozen; the eggs are frozen, either by being cooled slowly or by vitrification, fast freezing, and then stored in tanks of liquid nitrogen.