We welcome the Department of Health’s plans to modernise UK law on egg, sperm and embryo storage, which look set to simplify the law and enable more fertility patients to store genetic material in the UK for longer.
What the government is recommending
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.
Who will benefit from the changes?
There are many reasons why fertility patients in the UK store eggs, sperm or embryos, including:
- Adults and children facing treatment for cancer (or other medical conditions) which will affect their fertility,
- Trans men and women storing in advance of gender confirmation treatment,
- Women seeking to store eggs for when they are ready to start a family,
- Parents with gametes or embryos from previous fertility treatment which they want to use to conceive a sibling, and
- Intended parents with eggs, sperm or embryos in storage who, for any other reason, are not yet ready to use them to conceive a child.
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.
What does the current law say on gamete and embryo storage and why is change needed?
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:
The first issue in relation to any gametes or embryos in storage is what the basic storage period is. In 1991 the basic statutory storage period was set at five years for embryos and ten years for gametes, but it was amended in 2009 to make the basic storage period ten years for embryos as well as gametes, and then again in 2020 – due to COVID – to extend the basic storage period to twelve years.
The second issue is whether the patients qualify for extended storage (and if so for what period). To qualify, patients must produce medical evidence to show they are ‘prematurely infertile’, something which excludes many patients, including women seeking to preserve fertility simply due to age. Even for the patients who do qualify, the rules are incredibly complex. Regulations passed in 1996 overlap with new regulations passed in 2009 and in some cases both potentially apply to the same embryos/gametes. Each applies slightly different qualifying criteria (for example the old regulations do not allow extended storage for donation or surrogacy where the new ones do) and each applies different storage periods (the old regulations allowed a one-off extension of storage to age approximately 55, while the new regulations require consent and medical evidence to be renewed before the expiry of each ten year extension up to a maximum of 55 years in total).
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.
The push for change to the law on gamete and embryo storage
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.
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.
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