Embryo law regulation
Fertility treatment in the UK is regulated by legislation. The Human Fertilisation and Embryology Authority (the HFEA) is currently the UK’s independent regulator of treatment using eggs and sperm, and of treatment and research involving human embryos.
The introduction of the Human Fertilisation and Embryology Act 1990 created for the first time a regulatory framework for fertility treatment in the UK. It established a system of licensing and regulation of fertility treatment and research (including embryos) that was highly regarded around the world.
The Human Fertilisation and Embryology Act 2008 updated fertility law in the UK and for the first time codified embryo testing and simplified embryo storage law.
From 1 October 2009, the basic statutory storage period for embryos is ten years. Embryos can qualify for extended storage if the providers of both the egg and sperm consent in writing to storage beyond ten years and a doctor confirms in writing that either the egg or sperm provider or the recipient is prematurely (or absolutely) infertile.
There is a maximum storage period for embryos up to fifty five years, renewable at ten yearly intervals if a doctor provides a re-certification of premature (or absolute) infertility (this must be done before the expiry of each ten year period).
In Natalie Evans’ highly publicised case, her former partner withdrew consent to the storage of their embryos and the English court upheld the law that a gamete provider (in her case her former partner) had the right to withdraw consent to storage.
Embryo testing is now regulated by legislation in the UK. The law surrounding embryo testing is complex and it cannot simply be undertaken for social or cosmetic reasons.
Embryo testing involves tests being carried out on embryos prior to implantation to detect certain medical conditions or abnormalities. Methods include:
- Pre-implantation genetic diagnosis (PGD)
- Pre-implantation genetic screening (PGS)
- Pre-implantation tissue typing (‘saviour siblings’)
PGD can help you prevent passing on certain inherited medical conditions to your child by checking the genes in the embryo before implantation.
PGS can help screen embryos to ensure you do not conceive with an embryo with certain chromosomal abnormalities (eg Down’s Syndrome). Your clinician may discuss this with you if there are certain perceived risks in your case (eg family history of chromosomal abnormality or recurrent miscarriage).
Pre-implantation tissue typing is where an embryo (a sibling) is selected that is a tissue typed match to an older child with a life-threatening medical condition. Stem cells can be harvested from the chord of the tissue matched younger sibling at birth and then transfused to their older sibling to help cure them.
The value of expert legal
If you would like to discuss your situation in more detail or you require help concerning the following please contact me:
- how embryo law affects you and your family building plans
- disputes about stored embryos (whether you are an egg or sperm provider or recipient)
- advice about embryo law in difficult situations (including unexpected death or injury of your partner and posthumous conception, diagnosis of a serious medical problem, embryo testing and saviour siblings, potential relationship problems with your partner)
Embryo, treatment and research
During fertility treatment, drugs are used to stimulate the ovaries to produce eggs. These are then fertilised with your partner’s, or a donor’s sperm to create embryos (or alternatively created using donated eggs and your partner’s or donor sperm). Embryos can only be used in treatment, research or placed in storage for later treatment cycles with your consent (with some limited exceptions).
Before treatment starts, everyone involved will need to give their consent. You will be asked to complete and sign the relevant HFEA consent forms at your licensed clinic and you must also be offered counselling and information about the implications of treatment.
You, your partner (if they are an egg or sperm provider) or the donor can vary or withdraw consent at any time before the embryo/s are used in treatment or used in research. If one person withdraws consent then there will be a ‘cooling-off’ period of up to a year, and during this time the embryo/s cannot be used in treatment without everyone’s agreement. The person withdrawing consent must take all reasonable steps to notify everyone else for whom the embryo/s were to be used in treatment in writing (and signed). If no agreement can be reached the embryo/s must be allowed to perish at the expiry of 12 months.
Posthumous consent and legal parenthood
You can give consent to the posthumous use or storage of your embryos after your death by your partner (or your recipient if you are a donor). Valid consent must be in writing and signed before your death (although consent provided prior to 1 October 2009 only needed to be in writing).
In Diane Blood’s highly publicised case, she mounted a court case to win the right to conceive with her deceased husband’s sperm (collected just before he died). The English court ruled that although her husband’s sperm could not be used in fertility treatment in the UK because he had not given valid consent to its use after his death, it would breach EU law to prevent her from accessing treatment somewhere else in Europe. She subsequently exported her deceased husband’s sperm to Belgium where she underwent fertility treatment and successfully conceived.
If a heterosexual woman dies and her embryos are subsequently used by her male partner to conceive a child through surrogacy, she will not be the child’s legal mother and cannot be named as mother on the child’s birth certificate (law in the UK dictates that the surrogate mother will be the legal mother).
If a heterosexual man dies during his female partner’s pregnancy he will be the child’s father for all legal purposes (including inheritance). However, if the female partner conceives after his death using his sperm or embryos then whilst he can be named as father on the child’s birth certificate (provided registration takes place within 42 days post birth) he will not be legally responsible for the child.
For lesbian couples, if the non birth mother dies during her partner’s pregnancy she will be legally responsible for the child. A non birth mother can be named as the second parent of a child conceived after her death if the embryo was created before her death, but she will not be legally responsible for the child.
HFEA – short for Human Fertilisation and Embryology Authority – provides a wealth of information in its capacity as the UK’s regulator of fertility treatment
Fertility Network UK – a charity which provides help and assistance with fertility treatment
DCN – short for Donor Conception Network – offers help and support to donor conceived families and individuals
Media & Commentary
Expert Witness Fertility Law: Claims for IVF, Donor Conception and Surrogacy, (Louisa Ghevaert Associates’ blog 18 May 2022)
Was it legal to create a grandson with a dead man’s sperm? (The Times, 13 September 2018)
Rachael Bland’s fight to preserve her fertility is a battle fought by many modern women (Female First, 7 September 2018)
The significance of fertility: A landmark ruling on posthumous conception (BioNews, 3 September 2018)
Posthumous conception: a legacy in life, incapacity and death (Family Law Week, 20 August 2018)
Couple win IVF funding battle with NHS (The Telegraph, 20 December 2011)
Mother to freeze eggs so her infertile daughter, 2, can one day give birth to her own brother or sister (The Daily Mail, 11 January 2011)
The Times Lawyer of the Week (The Times, 1 October 2009)
Law Society Gazette Lawyer in the News (Law Society Gazette, 17 September 2009)
Couple win battle to save frozen embryos from destruction (The Times, 10 September 2009)
The Human Fertilisation and Embryology Act 2008: Revolution or Evolution? (Family Law, August 2009)