The Department of Health has announced plans to modernise UK law on egg, sperm and embryo storage. NGA Law and Brilliant Beginnings welcome the reform proposals, which look set to simplify the law and enable more fertility patients to store genetic material in the UK for longer.
There are many reasons why fertility patients in the UK store eggs, sperm or embryos, including:
The proposed new rules will allow all patient groups (rather than just those who can prove ‘premature infertility’) to store beyond twelve years. We welcome the proposed changes, which if done carefully will modernise the law to prioritise reproductive choice, remove the existing arbitrary time-limits and make the law more workable.
The current law on gamete and embryo storage is both enormously complex and unfair. The law creates a maximum storage period for eggs, sperm and embryos, and provides that once it expires the genetic material has to be destroyed regardless of the patient’s wishes.
When the permitted storage period expires is a really complex legal question:
Hopefully this gives a flavour of how complex the law is. If even skilled fertility lawyers find this hard (and we do!) how can the law be workable for doctors and patients applying it routinely in a clinical setting? NGA Law has been involved in increasing numbers of problematic cases, including those in which it is not clear whether the permitted storage period has or has not expired, and those in which, even though patients should qualify for extended storage on medical grounds, they lose the right to do so irrevocably because a deadline has been inadvertently missed by their clinic. This creates real injustice to patients who may lose their only chance of a genetic child as a result.
NGA Law and Brilliant Beginnings have long advocated for progressive law reform on gamete and embryo storage, arguing that UK law should better safeguard reproductive choice, avoid arbitrary deadlines, and be workable (and comprehensible) by those who need to apply it. For example in 2009 we were instrumental in enabling embryos stored for surrogacy to be stored beyond five years.
At a public education event run by the Progress Educational Trust in October 2019 (designed to explain the rules and how they worked), our founder Natalie Gamble asked the panel to comment on whether they thought the existing storage rules should just be abolished in favour of patients being able to decide for themselves how long to keep their eggs or embryos. The audience (mainly consisting of clinicians and fertility patient representatives) gave a round of applause for the question, demonstrating vividly the strength of feeling in the fertility community that the current law needs simplification and reform.
Progress Educational Trust who ran the event have spearheaded the #Extendthelimit campaign over the past two years, winning media coverage and public attention and doing exceptional work to get this important issue the attention of policymakers. Their campaign resulted in a public consultation from the Department of Health (which ran between February and May 2020 and to which we of course contributed a detailed submission).
In response to this public consultation, the Department of Health has now announced its very welcome plans to change the law.
Noting the advances in freezing techniques and societal changes, as well as the widespread support for law reform given in the consultation responses, the Department of Health has recommended that all fertility patients should be able to extend their storage, if they wish to do so, up to a maximum of 55 years (subject to patients renewing their consent every ten years so that clinics do not need to store genetic material indefinitely for patients who do not actively opt in). There will no longer be a need to produce medical evidence to show they are ‘prematurely infertile’. As the Department of Health says:
“The government concluded that the policy which best balances the four tests above is to offer everyone a new approach based on 10-year renewable storage periods up to a maximum of 55 years, regardless of medical need. This policy will provide equity to all fertility patients, irrespective of medical need, wishing to freeze their gametes or embryos.
The proposed policy will also facilitate choice, through enabling individuals to store their gametes or embryos for longer and make an unpressured choice to start a family later in life, if that is their preference. The policy change will be particularly positive for women, who are impacted more by clinical infertility as well as earlier onset of age-related fertility decline and the negative psychological consequences.”
We are watching keenly for the detail of the draft regulations to make sure that this objective is achieved. In particular it will be important to ensure that the transitional arrangements simplify things rather than adding another layer of rules, that the need to renew consent every ten years will not risk patients being irrevocably excluded from extended storage if a deadline is missed inadvertently (as is sometimes the case under the current law), that consideration is given to posthumous conception cases, and that no intended parents are inadvertently excluded. We will continue to do all we can to advocate for our clients and all future families who will benefit from the proposed changes.