Posthumous reproduction– Theis J to the rescue of a childless widower

In May 2022 Mrs Justice Theis granted the application of Mr Jennings a widower to use an embryo created from his gametes and those of his late wife to have a child by way of surrogacy. The required written consent had not been given.  

The judge who is renowned for her empathy in dealing with surrogacy issues accepted the interpretive approach put forward by counsel for Mr Jennings. It allowed her to ‘read down’ the words ‘written consent’ in accordance with s 3 of the HRA 1998 to include non-written consent. This would not open the floodgates which is always feared when an interpretive approach is taken because Theis J took into account the significant additional factors which had denied the late Mrs Jennings the opportunity to give a relevant written consent; the clinic had failed to provide information and counselling and the forms produced by the HFEA were inaccurate and opaque. Theis J suggested that the HFEA might wish to review its consent forms....

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