Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk.
A day in the life Of...
Read on

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

Date:18 APR 2023
Third slide
Mary Welstead CAP Fellow Harvard Law School; Visiting Professor in Family law University of Buckingham


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....

Read the full article here.