A mother lost her bid on Monday to use her dead daughter’s frozen eggs in order to give birth to her own grandchild, after a judge ruled there was insufficient evidence it was her late daughter’s wish.

The unnamed 59-year-old woman and her husband, 58, referred to as “Mr and Mrs M”, had challenged a regulator’s refusal to allow them to transport the frozen eggs to a US fertility treatment clinic.

Mr Justice Ouseley, however, ruled that her daughter, who died of bowel cancer at the age of 28 in June 2011, had not given the required consent.

Dismissing the claim at the high court in London, he said he was “conscious of the additional distress which this will bring to the claimants, whose aim was to honour their daughter’s dying wish for something of herself to live on after her untimely death”.

The Human Fertilisation and Embryology Authority (HFEA) had argued the daughter had died without giving written consent allowing her mother to act as a surrogate.

Mrs M submitted a statement to the court describing her daughter’s suffering during her bowel cancer, and said she had “wanted her genes to be carried forward after her death”. She had her eggs frozen after her diagnosis at the age of 23.

Her parents said she regarded the eggs as “living entities in limbo waiting to be born”.

A New York clinic had indicated it would provide the £60,000 fertility treatment with donor sperm, but the case came to court after the HFEA refused to issue a “special direction” allowing the eggs to be released from storage at Hammersmith hospital for export to the US.

The HFEA’s statutory approvals committee (SAC) decided in 2014 that there was insufficient evidence to show the daughter wanted the eggs used in the way her parents suggested after her death.

It is thought that if the case had been won, Mrs M could have become the first woman in the world to become pregnant using a dead daughter’s eggs.

An HFEA spokeswoman said: “This is a very sad case, and the ruling must be heart breaking for the couple.

“The case was about whether the couple’s daughter had given fully informed consent for her mother to use her eggs after her death.

“Our committee considered this case on three separate occasions, considering very carefully the new evidence given each time, but decided that there was not the kind of fully informed consent required by the law.”


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