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Consumer law guidelines for the IVF sector

The Competition and Markets Authority (CMA) announced on 7 February 2020 that it is investigating concerns about possible mis-selling of IVF ‘add-on’ treatments and misrepresentation of success rates at fertility clinics in the UK. In doing so, it is working closely with the Human Fertilisation and Embryology Authority (HFEA), which oversees and licences fertility clinics and treatment delivery in the UK.

The CMA intends to produce written guidance (currently lacking in the UK) on consumer protection law for the IVF sector. This will help address concerns by the CMA that UK fertility clinics are not fully aware of their obligations. As such, the CMA will produce guidance on price transparency so that clinics are clear and upfront about their fertility treatment prices to help patients make informed choices about the cost of treatment. The guidance will make clear that patients should not be mis-sold IVF ‘add-on’ treatments, which can add up to an additional £2,500 per treatment cycle, and that they should be given all relevant information to help them decide whether an ‘add-on’ is right for them. The guidance will also state that clinics should not mislead patients about how successful their treatment will be and that they should ensure their clinic success rates are accurate and up to date on their websites and in their advertising. Furthermore, the guidance will make clear that fertility clinic terms and conditions should be fair and transparent.

In developing its written guidance for the IVF sector in the UK, the CMA will undertake a public consultation later this year and it invites people to contact them to share their fertility treatment experiences. It also intends to publish written advice for fertility patients.

The CMA has stressed that that this early stage, it has not reached a clear view on whether consumer protection law has been broken. However, if it finds that fertility clinic’s practices are misleading or their terms are unfair, it could take enforcement action.

In conjunction with this announcement from the CMA, the HFEA said on 7 February 2020 “We are very pleased to be working with the Competition and Markets authority (CMA) on a new project to develop guidance for IVF clinics in the UK to make sure they treat their patients fairly. The CMA has concerns about the potential mis-selling of services such as IVF ‘add-on’ treatments, and the mis-representation of clinics’ success rates. We are working closely with the CMA to help them to understand patients’ experiences and learn more about how clinics operate. We are also working closely with the Advertising Standards Authority (ASA) who will be engaged in this work to learn more about the sector. They are interested in the way success rates are presented and how information is displayed via clinic websites and/or adverts.”

This initiative by the CMA and the HFEA comes at a time when the UK fertility treatment sector is estimated to be worth £320 million and demand for fertility treatment continues to grow, with more than 69,000 cycles of fertility treatment undertaken annually in the UK. This is fuelling competition in the privately funded IVF market, which currently provides more than half of all fertility treatments. It also follows recent headlines expressing concerns about the high cost of IVF ‘add-on’ treatments given their unproven or limited success rates, threatening the reputation of fertility treatment in the UK.

It also follows the decision by the HFEA in December 2019 to change its traffic light rating of pre-implantation genetic screening of embryos from amber to red, stating that “PGS will not increase your overall chances of having a baby. It appears possible that reduced availability of embryos for transfer following PGS may counter any benefit of embryo selection. When considering whether to have PGS, you should also think about the cost as it is usually very expensive against the lack of conclusive evidence of benefit and the potential for harm.”

Forty years after the advent of IVF, there are still no green HFEA traffic light ratings for IVF ‘add-ons’ and it is clear that more evidence based research is required to fill the gaps in understanding and better inform the future delivery of fertility treatment for patients. More work is also needed to bring about root and branch fertility law reform in the UK to address declining fertility levels in the West, the growing uptake of fertility treatment, prevalence of later-life conceptions, growing shortfalls in population replacement, inequalities in access to fertility treatment and the growing need for centralised fertility law and policy in the UK to address rapidly evolving inter-connected digital, artificial intelligence, genomic, epigenetic and reproductive technological advances.

If you would like to discuss your situation or you require specialist fertility and family law advice and assistance please contact Louisa by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.

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