High Court rules in favour of widower Ted Jennings in novel surrogacy application case

The High Court has ruled in favour of Ted Jennings in his application for permission to use the last remaining embryo that was created with his late wife, Fern-Marie Choya. The case raised novel and complex issues about the application of the Human Fertilisation and Embryology Act 1990. 

It was argued on behalf of Ted Jennings that Fern-Marie Choya was not given an opportunity to provide her written consent to her embryos being used after her death in surrogacy due to the format of the consent forms published by the Human Fertilisation and Embryology Authority (the HFEA).  It was also submitted that it was possible for the court to enable evidence of consent to be provided other than in writing. 

In a judgment handed down on Wednesday 22 June 2022, Mrs Justice Theis agreed that it is possible for the court to confer that Fern-Marie Choya consented to her husband being able to use their embryo in treatment with a surrogate after her death, in the context where “…she had not been given relevant information and/or a sufficient opportunity to discuss it with the clinic”. The judgment goes on to state that the court can “…dispense with the requirement for written and signed consent in this limited situation where a person has been denied a fair and reasonable opportunity in their lifetime to provide consent for the posthumous use of their embryos and there is evidence that the court concludes, directly and/or by inference, that if that opportunity had been given, that consent by that person would have been provided in writing”. 

Mrs Justice Theis concluded her judgment by suggesting that the HFEA may wish to consider reviewing the relevant consent form in this scenario in order to provide clarity and to prevent this situation from occurring again.

James Lawford Davies, representing Ted Jennings, said: “I am delighted that the court has found in Ted’s favour and that he can now proceed with surrogacy treatment. It was clear that this is what Fern would have wanted and this very thorough judgment allows her wishes to be respected”.

Ted Jennings’s solicitors were James Lawford Davies (Partner) and Ambika Pugalia (Associate) of Hill Dickinson LLP.
Ted Jenning’s barristers were Jenni Richards QC, Catherine Dobson and Stephanie David of 39 Essex Chambers.