Judges ruled refusal was 'flawed' and have asked committee to decide again

Her daughter asked her parents to raise her babies before death in 2011

A bereft mother fighting to fulfil her daughter's 'dying wish' by using her frozen eggs to conceive a baby has won a landmark case which paves the way for her to give birth to her own grandchild.

The 60-year-old wants permission to use the eggs after her 'much-loved and only child' asked her to have and raise her offspring when she was dying of cancer.

The daughter, who died of bowel cancer in 2011 at the age of 28, had frozen her eggs during her treatment and had 'never wavered' in her desperate wish to become a parent. When she knew she was dying, she asked for that wish to be carried out by her own mother.

Today, in a hugely significant ruling, judges found in the woman's favour, paving the way for her to travel abroad and use a sperm donor to fertilise her daughter's eggs.

A bereft mother who fought to fulfil her daughter's 'dying wish' by using her frozen eggs to conceive a baby has won a landmark case which paves the way for her to give birth to her own grandchild

The ruling comes after a five-year legal battle in which the fertility watchdog refused to release the eggs to the mother, on the grounds the daughter had not provided written consent for them to be taken abroad.

But today, Sir James Munby, Lady Justice Arden and Lord Justice Burnett overturned a High Court ruling which said that decision was legal, instead calling the watchdog's refusal 'flawed'.

The case has now been referred to the Human Fertilisation and Embryology Authority (HFEA) committee - who were fighting the appeal - to reconsider its decision.

A New York clinic has already indicated it would carry out fertility treatment at an estimated cost of £60,000 if the HFEA give permission for the mother and father, 59, to travel abroad.

Giving the court's ruling, Lady Justice Arden said the couple - referred to as Mr and Mrs M - had succeeded because the committee had made their decision on a 'lack of certain evidence'.

She also said the watchdog 'waved aside' a conversation between the mother and daughter in which they 'clearly contemplated the creation of an embryo.'

During the hearing, Jenni Richards, the woman's QC, told the three judges that the woman wanted to fulfil her daughter's wishes that she should carry and raise a child created from her frozen eggs.

Ms Richards said that, if judges did not overturn the High Court's ruling, the eggs would 'simply be allowed to perish'.

The judge had heard how the daughter - referred to only as 'A' - had been diagnosed with cancer at the age of 21, after she had finished at university and had a good job.

She was desperate to have children and wanted to undergo IVF to save her eggs, a procedure that was delayed because she was too ill.

The daughter was so determined to have children - and so concerned that her treatment would leave her infertile - that she even asked doctors to put her ovaries into her mother's body.

But, during a period of remission in 2008, the daughter was well enough to have treatment for the removal and storage of three eggs.

The eggs - which she referred to as 'my babies' - were then stored at a fertility clinic in West London.

But when the young woman realised she was dying in January 2010, she told her mother that she still wanted to have children - but via her own mother.

In evidence, the mother said her daughter told 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. I couldn’t have wanted for better parents, I couldn’t have done without you.'

The daughter, who died of bowel cancer in 2011, had asked her mother to carry her child, using the eggs which she had frozen during her treatment. She also wanted her parents to raise that child

Her parents later arranged to use a clinic in New York to conceive a child using a sperm donor.

But when they asked the IVF clinic to release the eggs in 2013, when Mrs M was 57, The Human Fertilisation and Embryology Authority turned down the request.

The judge was told that the HFEA did not object on the grounds of Mrs M’s age or the child’s welfare but ruled the daughter had not given full written consent before her death.

Although the daughter had filled out a form agreeing to the eggs' storage and use, she had not specified how her eggs would be used after her death - - including whether they should be taken abroad or fertilised with a sperm donor.

Mrs M said her daughter was never given another form to specify how she wanted the eggs to be used and that her intention was clear.

She said in her evidence: 'I have absolutely no doubt in my mind that, as far as A was concerned, her eggs held a life force and were living entities in limbo waiting to be born.

'She was clear that she wanted her genes to be carried forward after her death. She had suffered terribly and this was the one constant in her remaining years from which she never wavered.'

But HEFA said the daughter may not have realised that her mother’s health could be put at risk by such a pregnancy.

A consultant obstetrician said Mrs M’s age meant her chances of carrying a child were small, and she had a greater risk of suffering complications, but that it was ‘likely’ she could give birth safely.

Mrs M has previously been treated for breast cancer and pregnancy can increase the risk of some hormone-related cancers returning, the court heard.

In the High Court hearing, Mr Justice Ouseley had ruled that the HFEA had been entitled to find the daughter had not given 'the required consent'. He declared that there had been no breach of the family's human rights.