Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: Should A Woman Give Birth To Her Own Grandchild?

We get to choose what happens to our property when we die. Why not our DNA?

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old woman with baby mother grandmother grandma elderlyLast week, an English court re-opened the door to “Mrs. M,” the mother of a deceased cancer victim. Mrs. M’s daughter had frozen her eggs before losing her struggle with cancer, and later begged her mother to carry her child after her death. The court found, as a factual matter, that Mrs. M’s daughter made the following statement to her:

“I want you to carry my babies. I didn’t go through the IVF to save my eggs for nothing. I want you and Dad to bring them up. They will be safe with you.”

Mrs. M’s daughter was only 28 when she passed in 2011. Since that time, Mrs. M has been engaged in a long battle with both the Human Fertilisation and Embryology Authority (the “HFEA”) and the British court system. The HFEA is the regulatory body overseeing assisted reproduction in England. And it has repeatedly thwarted Mrs. M’s efforts to fulfill her daughter’s wishes.

Factual Background

Mrs. M’s daughter had been fighting cancer and underwent IVF during a period of remission in order to retrieve her eggs and preserve her ability to have children. When it became clear that her cancer was terminal and she would never have the chance to use her eggs, she pleaded with her mother to have her children.

Mrs. M agreed to fulfill her daughter’s dying wish. But she was immediately blocked by the HFEA. Britain’s fertility authority noted that while her daughter had signed a consent form to cryopreserve her eggs, she had not signed any form specifically authorizing the eggs to be used for reproduction after her death.

Mrs. M tried a different tactic. She found a clinic in the United States that would be willing to make the transfer, so she petitioned for the eggs to be transferred to the clinic in New York. But the HFEA rejected her petition, and a lower court (ironically called “the High Court”) upheld the HFEA’s decision.

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Undaunted, Mrs. M appealed. Last Thursday, a court of appeal ruled in Mrs. M’s favor. The court held that the HFEA had set the bar too high for making a finding of consent. Moreover, it held that there was sufficient evidence — in part on the basis of the above statement — of the daughter’s specific wishes that her mother use her eggs after her death. In light of the ruling, the HFEA says it will reconsider Mrs. M’s case.

“Ickiness” Factors Not at Issue. This case raises several issues often used by opponents of assisted reproductive technology.

Age.  Mrs. M is 60. Her husband is 59. When Baby M graduates high school, his or her parents will be near 80, if they’re even still alive. Frankly, I understand the concern that older parents (a) are likely to die sooner, and (b) may not have the same energy level as younger parents. On the other hand, plenty of kids who are not conceived using assisted reproductive technology are successfully raised by their grandparents. And, as I have addressed here before, the age argument tends to be a sexist one. Octogenarian men father children with little judgment, but a woman is considered old beyond 35! (Which is called “advanced maternal age”!)

Both Parents Unknown or Deceased. Mrs. M was clear that she planned to use an anonymous sperm donor to fertilize her daughter’s eggs in the conception process. The child would not have a chance to know either his or her genetic mother or father. While this is common for many adopted children, there is, of course, the factual difference of the child being deliberately conceived in this context. Of course, this also occurs with singles and couples who face infertility issues and turn to both a sperm donor and an egg donor to conceive their children.

Having One’s Own Grandchild. It has become more and more common to see grandmothers carrying their own genetic grandchildren to birth. Typically, these births happen when the carrier’s daughter has a medical condition that prevents her from carrying her own child and her mother is able and willing to act as her surrogate.

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It’s All About Consent.  Of course, the only legal issue the appellate court addressed was whether Mrs. M’s daughter gave sufficient consent for her eggs to be used after her death. The HFEA’s initial ruling turned on the limited consent form not addressing the use of the eggs. Separately, the appellate court rejected the HFEA’s argument that consent was not truly “informed” because the daughter didn’t know that her mother might put her own health at risk by undergoing pregnancy. (Mrs. M previously fought breast cancer, and there is medical evidence that pregnancy can increase the chance of re-occurrence for some hormone-based cancers.)

Laws banning the use of a deceased person’s gametes without their consent make sense, in the abstract. But many questions remain about the standard used to evaluate whether consent has truly been given. The appellate court appropriately ruled that litigants should be able to establish consent without setting the bar too high. After all, we get to choose what happens to our property when we die. Why not our DNA? Now we just need to decide how high the bar should be.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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