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Reform of UK fertility laws - ripe for change

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First published by Today's Family Lawyer on 7 October 2021 - Reform of UK fertility laws – ripe for change

On 6th September, the Government announced an overhaul of the UK’s fertility laws, with plans to extend the storage limit for gametes (sperm and eggs) and embryos from 10 to 55 years for everyone.

This article looks at how the law has developed since the Human Fertilisation and Embryology Act (HFEA) 1990 came into force in 1991.

The current law

The HFEA 1990 set the statutory storage limit at 10 years for gametes and five years for embryos. The HFEA 2008, which was implemented in 2009, increased the statutory storage limit for embryos to 10 years.

As a result of the Covid-19 pandemic, in 2020 this 10-year limit was increased to 12 years, to ensure that no gametes or embryos that were coming to the end of their decade-long storage would be destroyed whilst fertility treatment was suspended following the closure of fertility clinics.

Since Regulations were first introduced in 1991, however, it has been possible to extend the statutory storage period for gametes up to a maximum age of 55 years if, since providing those gametes, the fertility of the person providing them has or is likely to become significantly impaired. A written opinion of a registered medical practitioner is required to prove this.

Following Regulations in 1996, the five-year storage limit for embryos (as it was at the time) could also be extended to a maximum age of 55 years, on the written opinion of two registered medical practitioners that the person has or is likely to become prematurely and completely infertile.

Further Regulations passed in 2009 changed this again to a maximum storage limit of 55 years in total (slightly different to being based on the age of the person storing). The storage of embryos and gametes would now be for a period of 10 years, with a rolling requirement to update the medical opinion before the expiry of each 10-year period if storage of those embryos and gametes was still required, up to a maximum period of 55 years.

This extension to the statutory storage period of 10 years was therefore only available to those people who were or could become infertile, usually due to medical conditions or treatment. It did not apply to anyone who was freezing their gametes or embryos for ‘social’ i.e. non-medical reasons.

Why is this relevant?

Hitherto, the system has differentiated between patients, discriminating against those women who choose to freeze their eggs for a variety of non-medical reasons – for instance, because they wish to focus on their career, they may not have found a partner yet, or perhaps they simply do not feel ready to become a mum. Freezing eggs means that there is a possibility of being able to conceive a biological child at a later date.

However, the 10-year limit works against women. The best time to freeze eggs is before the age of 35, and ideally in the 20s. But if egg freezing takes place then, 10 years later and possibly still only in her early 30s, a woman will be faced with the possibility of those eggs having to be destroyed before she is ready to use them.

Some women, therefore, may choose not to freeze their eggs at the optimum time, but rather freeze them later in their 30s so they have until their 40s to conceive. Yet egg quality drastically reduces after the age of 35 and so the likelihood of those frozen eggs resulting in a live birth is significantly reduced.

Therefore, rather than giving women reproductive options by egg freezing, the 10-year limit actively works against their reproductive choice.

It is also unfair to differentiate between women on such an arbitrary basis, allowing extended storage limits for so-called “noble” medical reasons, whilst seemingly punishing others for what some would call “vanity” reasons, such as delaying motherhood to focus on a career, or because they do not have a partner.

In addition, following improvements in freezing techniques, such as the ‘flash-freeze’ technique called vitrification, it is now much easier to freeze and thaw eggs for fertility treatment, and so there is no scientific reason why there should be any differentiation between medical and social freezing.

What are the planned changes to the law?

In February 2020 the Government announced a public consultation into gamete and embryo storage limits, seeking the public’s opinion as to whether the storage limit should be extended. Progress Educational Trust, a charity focused on the improvement of reproductive choices, has been campaigning for the 10-year limit to be extended since 2019.

The consultation ended in May 2020 and on 6 September 2021 the Department for Health and Social Care announced that the 10-year renewable storage period up to a maximum period of 55 years for gametes and embryos will be available to all, irrespective of medical need. The ongoing storage will require ongoing written consent from the patient, and they should have access to counselling.

This is a fundamental shift in fertility choices for women who will now be able to make the informed choice to freeze their eggs in their 20s when they have the highest quality eggs and be reassured that those eggs will still be available for use whenever they are ready to start a family.

Changing the law in this way gives greater choice and reproductive freedom and removes the discrimination between medical and social gamete freezing. It also means that those women who were approaching the end of their 10-/12-year storage limit, will no longer be forced to move those gametes abroad where the rules on storage are different – a costly and often risky process, nor will they be forced to fertilise those eggs before they are ready to do so or otherwise see those eggs destroyed.

Whilst there has been the expected outcry about the possibility of women choosing to delay motherhood until their 50s or 60s, realistically, this is unlikely to happen. Although there is no legal upper age limit for fertility treatment, clinics will have their own set age limits and are statutorily required to consider the welfare of any child born from fertility treatment; this will inevitably take into account the age of the intended mother, as well as any health risks to her in carrying a pregnancy in later years.

What happens now?

Whilst the Government has announced its intention to change the law, it will require legislation (most likely through further Regulations) which will need to be debated in Parliament.

There is no timeline from the Government as to when this may happen, and it could be years before the law is actually changed. There is a risk, therefore, that any gametes or embryos currently in storage coming to the end of the 12-year period (extended from 10 years due to Covid), may be destroyed before the coming into force of this law. This would be devastating.

Calls are being made for the Government, most notably from Baroness Ruth Deech, to declare a moratorium on the destruction of any gametes or embryos currently in storage until the law has changed.

Until then, those supporting the planned overhaul of the UK’s fertility rules should: