Fertility Treatment Law

There are a variety of ways to build a family through fertility treatment, including:

• IVF treatment (with own or donor eggs and sperm).
• IUI  treatment (with own or donor sperm).
• ICSI treatment (with own or donor sperm).
• IVF treatment with surrogacy.
• PGD treatment with IVF.
• Egg, sperm and embryo freezing treatment (e.g. for future use in fertility treatment and fertility preservation purposes).
• Posthumous conception with IVF.

Fertility treatment creates a wealth of legal, medical, financial, emotional and practical issues because:

• Fertility treatment does not guarantee a much-wanted child.
• There is no international harmonisation of fertility treatment law.
• Fertility treatment in the UK is governed by complex legislation.
• Fertility treatment can create unintended legal and practical outcomes concerning the procurement, storage and use of gametes (eggs and sperm) and embryos or legal status of an intended parent, child, donor or surrogate.

There are many situations when specialist fertility treatment law advice and legal representation is required, including:

• Expert fertility treatment law advice to support a claim for damages following medical negligence.
• To access fertility treatment at a UK licensed fertility clinic.
• To import or export eggs, sperm or embryos for fertility treatment.
• To understand and proactively manage the legal issues associated with donor conception in combination with fertility treatment.
• To undertake posthumous conception fertility treatment.
• To obtain legal parentage and parental responsibility for a child conceived through fertility treatment (e.g. a non-birth parent or a co-parent).
• To obtain a British birth certificate naming a parent as the legal parent of a child conceived through fertility treatment.
• To resolve a dispute with an ex-partner, parent, known donor, co-parent or surrogate about a child conceived through fertility treatment.
• To resolve a dispute or issues about the care, upbringing and legal status of a child born through fertility treatment (e.g. a child arrangements order, a parental responsibility order, a specific issue order or a wardship order).

Need a fertility treatment lawyer?

Our specialist fertility treatment law services navigate the complex legal issues associated with fertility treatment. We can answer questions and help you make informed decisions with peace of mind. We work closely with you and tailor our legal advice to suit your needs and situation in the short, medium and longer term because we work at the forefront of law and policy in this rapidly developing area.

Our expert fertility treatment lawyer Louisa Ghevaert is a co-author of medical reference book Reducing Risk in Fertility Treatment (First Edition, April 2015), contributing a specialist chapter entitled “Legal and Regulatory Risks to Patients: The UK Context” addressing legal and regulatory pitfalls faced by fertility patients seeking various forms of fertility treatment in the UK.

Louisa Ghevaert has since 2017 been a member of the International Egg Donation Stakeholder Advisory Group led by De Montfort University concerned with the future landscape of egg donation law and policy in the UK and Europe.

Since 2008, our expert fertility treatment lawyer Louisa Ghevaert has dealt with many landmark fertility treatment law cases, including:

In 2009, Louisa Ghevaert successfully helped Melanie and Robert Gladwin save their frozen embryos from destruction and win a high profile last minute change to the law in relation to embryo storage.

In 2011, Louisa Ghevaert successfully helped Donna and Dean Marshall win a rare legal battle against their PCT for funding for IVF treatment on the NHS.

In 2012, Louisa Ghevaert represented Andrea Heywood, who aged 24, was denied IVF funding on the NHS by her local hospital authority for being too young.

In 2013, Louisa Ghevaert successfully obtained a parental order for British intended parents who had a surrogate born child through fertility treatment, egg donation (so their child had a similar racial background to the intended father who was of Chinese origin) and a Californian (USA) commercial surrogacy arrangement. This case redefined the English Court’s approach to egg donor payments and the authorisation of commercial surrogacy payments given UK public policy restrictions.

In 2016, Louisa Ghevaert obtained a declaration of parentage in the High Court for a woman in a same-sex relationship for a child conceived through fertility treatment and sperm donation at a UK fertility clinic licensed by the HFEA.  The HFEA Consent Form WP was missing from the clinic file which called the non-birth mother’s legal parentage into question, In the matter of the Human Fertilisation and Embryology Act 2008 (Case V) [2016] EWHC 2356 (Fam).

In 2017, Louisa Ghevaert gave expert fertility treatment law, donor conception and surrogacy law advice in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), being the first legal case in the UK in which the High Court awarded damages of £74,000 to a woman for altruistic UK surrogacy and fertility treatment following a delay in detecting cancer in smear tests and biopsies.

In 2018, Louisa Ghevaert was part of the wife’s legal team in Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18, and obtained a first-of-its kind judgement from the Court of Protection to extract and store sperm from a fatally injured man for use in posthumous fertility treatment.

Through 2018, 2019 and 2020, Louisa Ghevaert’s expert surrogacy, donor conception and fertility treatment law evidence in the Court of Appeal and the Supreme Court resulted in further legal rulings for a woman left infertile following a delay in detecting cancer in smear tests and biopsies, enabling for the first time recovery of damages of approximately £558,000 for commercial surrogacy, donor conception and fertility treatment in the US, XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 and Whittington Hospital NHS Trust v XX [2020] UKSC 14.

You can find more information and links to these cases below.

Louisa Ghevaert has dealt with numerous leading and cutting-edge fertility treatment law cases, including:

Whittington Hospital NHS Trust v XX [2020] UKSC 14, a landmark ruling where the UK Supreme Court by a majority of 3:2 dismissed the defendant hospital’s appeal. This enabled the recovery of damages for commercial surrogacy, donor conception and fertility treatment in the US for a woman rendered infertile and unable to carry a pregnancy following a delay in detecting cancer in smear tests and biopsies. Louisa Ghevaert gave expert evidence in the case, which featured in The Guardian (1 April 2020) and in BioNews (6 April 2020).

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, where for the first time the Court of Appeal awarded damages for the costs of fertility treatment, donor eggs and commercial surrogacy in California for a woman rendered infertile and unable to carry a pregnancy following a delay in detecting cancer in smear tests and biopsies. Louisa Ghevaert gave expert evidence in the case, which featured in The Telegraph 19 December 2018 and The Times, The Telegraph, The Mail Online and The Mirror on 27 January 2019.

Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18, a first-of-its kind judgement which secured a unique legal ruling from the Court of Protection to extract and store sperm from a fatally injured man for use in posthumous fertility treatment and featured in The Independent (13 July 2018) and The Times (14 July 2018).

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), being the first legal case in the UK in which the High Court awarded damages to a woman for altruistic UK surrogacy and fertility treatment following a delay in detecting cancer in smear tests and biopsies. This case marks the cross-section of fertility, family and medical negligence law. It highlights the importance of fertility, surrogacy and family law aspects when medical negligence renders a woman infertile and unable to carry a pregnancy. Louisa Ghevaert gave expert evidence in this case.

In the matter of the Human Fertilisation and Embryology Act 2008 (Case V) [2016] EWHC 2356 (Fam), obtaining a declaration of parentage in the High Court for a woman in a same-sex relationship for a child conceived through fertility treatment at a UK fertility clinic licensed by the HFEA.  The HFEA Consent Form WP was missing from the clinic file. The case for the first time gave guidance on the practice of making interim costs orders in favour of patients to fund litigation and access to justice following errors in the completion of consent forms at UK fertility clinics.

Andrea Heywood, who aged 24, was denied IVF funding on the NHS by her local hospital authority for being too young and featured in The Independent and Mail Online (4 June 2012).

Donna and Dean Marshall, helping them win a rare legal battle against their PCT for funding for IVF treatment on the NHS and featured in The Telegraph and BBC South Today (20 December 2011) and the Portsmouth News (21 December 2011).

Melanie and Robert Gladwin, helping them to save their frozen embryos from destruction and winning a high profile last minute change to the law in relation to embryo storage in September 2009.  Louisa Ghevaert was subsequently featured as The Times Lawyer of the Week (1 October 2009) and Law Society Gazette Lawyer in the News (17 September 2009).

In the News

Our expert fertility treatment lawyer Louisa Ghevaert regularly features in the media, including:

“Donor Conception Law: Calls For Global Limits For Egg And Sperm Donors” (Louisa Ghevaert Associates blog, 2 September 2024).

“Can Air Pollution Affect My Fertility?” (Louisa Ghevaert Associates blog, 12 July 2024).

“IVF Add-Ons: How Should We Score the HFEA’s New Ratings System?” (Louisa Ghevaert Associates blog, 8 February 2024).

“Declining Global Fertility Rates: A Growing Problem” (Louisa Ghevaert Associates’ blog, 13 January 2024).

“Fertility Law Reform In The UK: How Much Change Do We Want?” (Louisa Ghevaert Associates’ blog, 14 December 2023).

“Male Infertility and Reproductive Health: A Growing Problem?” (Louisa Ghevaert Associates’ blog, 19 October 2023).

“Can Microplastics Affect My Fertility?” (Louisa Ghevaert Associates’ blog, 28 July 2023).

“One Year On Since Dobbs v Jackson Women’s Health Organization [2022]” (Louisa Ghevaert Associates’ blog, 9 May 2023).

“Global Decline In Sperm Counts: Do I Need To Be Concerned?” (Louisa Ghevaert Associates’ blog, 18 November 2022).

“Egg, sperm and embryo freezing: what could go wrong?” (Louisa Ghevaert Associates blog 20 June 2022).

“Expert Witness Fertility Law: Claims for IVF, Donor Conception and Surrogacy” (Louisa Ghevaert Associates’ blog, 18 May 2022).

“The Economics of Older Mums” (BBC World Service radio interview featuring Louisa Ghevaert 12 October 2021).

“Women fired for having IVF: Appallingly many companies still do not understand the toll fertility treatment takes, despite one-in-seven couples using it” (The Daily Mail 4 August 2021).

Podcast “The Intricacies of Fertility Preservation” interview with Louisa Ghevaert and Eloise Edington of Fertility Help Hub (17 December 2020), also on podcast apps Apple, Spotify and Soundcloud.

“The UK Supreme Court awards damages for commercial surrogacy” (BioNews, comment piece by Louisa Ghevaert, 6 April 2020).

Apple podcast on Speak From the Body with Avni Touch entitled “Fertility law for modern families with Louisa Ghevaert” (26 February 2020).

“Why we need root and branch law reform” (BioNews 25 November 2019) and longer associated article “Why we need fertility law reform: the paradigm shift” (25 November 2019).

“Rachael Bland’s fight to preserve her fertility is a battle fought by many modern women” (Female First, 7 September 2018).

“3 Person IVF approved by the HFEA – what does this mean?” (Jordan Publishing Family Law, 31 January 2017).

You can read more here.