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Fertility preservation: extending the 10-year storage limit

On 6 June 2019 Baroness Ruth Deech QC introduced a Private Members’ Bill into the House of Lords which proposes to extend the current 10-year storage limit for frozen eggs and sperm in the UK.

At present there is an arbitrary 10-year limit for storing frozen eggs and sperm in the UK, except in cases that qualify for extended storage where a registered medical practitioner has given a written opinion that the egg or sperm provider, or the person to be treated, is prematurely infertile or is likely to become prematurely infertile (e.g. through cancer treatment or gender reassignment).

The Storage Period for Gametes Bill calls for change to additionally allow women and men to store their frozen eggs and sperm for longer if they have not completed their family. It reflects improvements in science and medicine in recent years that better enables eggs to be frozen, thawed and then used in fertility treatment. It also reflects the fact that women and men are leaving it until later in life before starting a family for social and economic reasons.

Through my work as a fertility lawyer, I have witnessed many times the distress and misery cased when people’s fertility is threatened, lost and compromised for a whole range of reasons. This can strike men, women and children at any time and from all walks of life. However, people’s battle to preserve their fertility is exacerbated two-fold. Firstly, the current arbitrary 10-year gamete storage period is inflexible and it does not allow enough time for contemporary family building. Secondly, current storage limits disproportionately disadvantage women because their biological clock cases their fertility to diminish at a faster rate than men’s.

Over the last decade, I have been instrumental in effecting changes to law and policy in the UK to preserve fertility. In 2009, I successfully helped bring about a last-minute change in Parliament extending the time limit for storing frozen embryos used in surrogate pregnancies from five to ten years.

In September 2017, I delivered expert evidence on fertility law in ground-breaking medical negligence proceedings that heralded a new ‘fertility’ head of claim. The English High Court awarded damages of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies. In December 2018, the Court of Appeal increased the woman’s award to £1.1 million to enable her to undertake commercial surrogacy, fertility and donor conception in California (although this is subject to appeal).

In 2018, I also won a landmark judgment from the Court of Protection to extract, store and use a fatally injured man’s sperm in his wife’s posthumous fertility treatment. This important legal ruling now acknowledges that individual fertility is very precious and it should be protected and preserved like any other asset in appropriate circumstances.

There is no escaping the fact that the demands of modern living are making it increasingly difficult for people to start a family. Whilst there is currently much ongoing media coverage and debate about egg-freezing, fertility treatment and ‘add-ons’, the time has come to revisit current attitudes and time limits for storing eggs and sperm in the UK. However, whilst The Storage Period for Gametes Bill is bringing about much-needed debate in Parliament, it only seems to address storage periods for eggs and sperm and not embryos as well. Arguably, this debate should encompass frozen embryos too so that there is a complete review of law and policy governing fertility preservation in the UK.

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

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