Husband granted right to use late wife's embryo for surrogacy

Ted Jennings, of Highbury, who has been given permission to use an embryo created with his late wife after IVF treatment 

Ted Jennings, of Highbury, who has been given permission to use an embryo created using his sperm and the eggs of his late wife after IVF treatment - Credit: PA

The husband of a woman who died suddenly while pregnant can use an embryo created during fertility treatment to have a child using a surrogate, a High Court judge has ruled.

Ted Jennings' late wife Fern-Marie Choya died aged 40 in 2019 after her womb ruptured when she was 18 weeks pregnant with twin girls.

The couple had undergone several IVF cycles since 2013, and their one remaining embryo is in storage at a private fertility clinic in London.

Ted Jennings' late wife, Fern Marie Choya

Ted Jennings' late wife, Fern Marie Choya - Credit: PA

Mr Jennings, 38, of Highbury, Islington, wants to use the embryo - which was created using his sperm and his wife’s eggs in 2018 - "in treatment with a surrogate mother".

The investment manager asked a judge at the High Court in London for a declaration that it would be lawful for him to do so, as Ms Choya had not given consent in writing before her death.

His application was opposed by the Human Fertilisation and Embryology Authority (HFEA), which argued it would be unlawful for the embryo to be used in that way because of the lack of written consent from Ms Choya.

In a ruling on Wednesday (June 22), Mrs Justice Theis said she was "satisfied" that Ms Choya did consent to use of the embryo in the event of her death.

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The judge also concluded that Ms Choya had not been given sufficient opportunity to give the consent in writing because a form completed during the IVF process was "far from clear" in prompts about what a woman should do to provide consent to posthumous use of an embryo by her partner.

She said the HFEA "may want to consider" whether the form should be reviewed in light of her judgment.

The judge considered Mr Jennings' application at a hearing in London in May.

Mr Jennings and Ms Choya, who moved to the UK from Trinidad, met in 2007 and married in 2009.

The judge also considered evidence from Ms Choya's family, who were described as speaking "with one voice" about what she would have wanted.

This included evidence from one of her four sisters who said she "wholeheartedly" believes Ms Choya would want Mr Jennings to use the frozen embryo in treatment with a surrogate.