A British man who lost his wife when she was pregnant with twins after IVF treatments is now fighting to be allowed to have a baby via surrogate, using the last embryo he and his deceased wife have left. 

Thirty-eight-year old Ted Jennings from London, England stated in his court case that he is certain his late wife, Fern-Marie Choya, would have consented to the use of the embryo. Fertility regulators are pushing back against this idea, though, because Choya never consented to posthumous surrogacy.

Choya died suddenly in 2019, after suffering a ruptured uterus. This is a major complication of pregnancy, and the blood loss led to Choya’s death at 40 years of age. This is the first case ever filed that deals with posthumous surrogacy, and raises a lot of ethical questions about what a person may or may not have wanted done with the embryos they leave behind. Part of Jennings’ argument is that the clinic did not give the couple an opportunity to consent, and only asked about his wife’s wishes for posthumous conception.

That would only apply if Jennings had been the one who passed away, and would have allowed his wife to use the remaining embryo to have another child if she wished to. When discussing this issue in a hearing with the family division of London’s high court, Jennings made it clear that these types of issues aren’t really at the forefront of people’s minds when they’re trying to move through successful IVF treatments and have a child.

A family division judge will now be the one to decide the case, which the fertility regulator argues shouldn’t be in Jennings’ favor. Without legal, written consent, there are ethical concerns that come into play. But since Jennings and Choya weren’t asked equivalent questions by the clinic, it will be up to the judge to decide whether Jennings’ wish to use the embryo can go forward.

At The Surrogacy Law Center, our thorough contracts also establish the intent of the parties regarding their rights, identify the parties’ financial responsibility, and ensure all parties are aware of the importance of informed consent, providing our clients with further peace of mind as they navigate their third party assisted reproduction journeys. Contact us to learn more!