17 September 2021
On 6 September 2021, the Department of Health and Social Care announced its proposal to extend legal storage limits for eggs, sperm and embryos in the UK for everyone, regardless of medical need, to 10-year renewable storage periods, with a maximum limit of 55 years. The proposed legislation will be introduced when parliamentary time allows.
This recent government announcement follows a public consultation, which ran for 12 weeks from 11 February – 5 May 2020, seeking views about changing the statutory storage limits for eggs, sperm and embryos in the UK. The government received 1,222 responses to its consultation from key fertility sector organisations. These were carefully considered and in doing so they took into account important issues of equality, reproductive choice, administrative burden and public acceptability.
In announcing its proposed policy change, The Department of Health and Social Care stated:
“Family units and family formation in the UK are vastly different today than they were when the Human Fertilisation and Embryology Act (the HFE Act) was introduced and last reviewed. In a modern society, some individuals are choosing to start their families later in life and are increasingly choosing to use new and effective techniques to freeze their eggs, sperm, or embryos to preserve fertility. The reasons for this are diverse but can include not being ready or able to start a family, medical conditions that might lead to premature infertility, or undergoing gender re-assignment.
The HFE Act currently sets the statutory storage limits for eggs, sperm, and embryos at ten years, with the possibility of extension up to 55 years for those who can demonstrate a clinical need. The Government recognises that these current arrangements are increasingly disadvantageous towards women and unnecessarily restrictive of individual freedom of choice about when to start a family.
…The proposed policy change is intended to facilitate greater reproductive choice and will allow for less stressful decision-making in family formation. Importantly, it will provide equity for all, regardless of medical need, and will help reduce administrative burden for clinics and the regulator.”
As a specialist fertility lawyer, I welcome this government proposal to extend legal limits for storage of eggs, sperm and embryos in the UK. Sadly, I have seen all too often the distress caused when people’s fertility is lost, compromised and restricted. The current standard 10-year gamete and embryo storage period is inflexible and it simply does not allow enough time for contemporary family building. It also disproportionately disadvantages women because their biological clock causes their fertility to diminish at a faster rate than men’s.
Through my specialist fertility law practice over the last twelve years, I have helped to bring about changes to law and policy in the UK to preserve and protect individual fertility. Along with others, I have also called for an extension to the 10-year standard legal limit for the storage of eggs, sperm and embryos in the UK.
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 and surrogacy 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 UK altruistic 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; which was upheld in a landmark legal ruling by The Supreme Court in April 2020.
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 other assets in appropriate circumstances.
The demands of modern living are making it increasingly difficult for people to start a family. A change to overly restrictive, arbitrary and unfair legal limits for storing eggs, sperm and embryos in the UK is well overdue to help people maximise and protect their fertility. It will also help increase reproductive choice and provide more time for people to seek to build and complete their much wanted families. It will, however, be critical to ensure that new legal rules are carefully thought through in addressing this complex area of law and practice.
Need a fertility lawyer? If you would like to discuss your situation or you require specialist fertility and family law advice and assistance please email louisa@louisaghevaertassociates.co.uk or telephone +44 (0)20 7965 8399.
