A group of more than 15 fertility patients are taking legal action to prevent their frozen embryos from being destroyed as a result of administrative errors that could deprive them of the opportunity to have children.
The group, which includes people with cancer and fertility problems, had frozen gametes or embryos to improve their chances of getting pregnant later, but their clinics informed them that due to administrative errors they had not renewed their consent in time and they would not be able to access their embryos or extend their storage period without a court order.
In some cases, people only learned about the errors when they went to the clinic about their plans to have a baby, and for some this is their only hope of conceiving naturally. In other cases, clinics contacted couples after internal audits and apologized for their mistakes, but notified them that they could only extend the storage period through a court order.
The errors relate to two changes in the law. One was in 2022 and extended the maximum storage period for embryos and gametes (eggs and sperm) from 10 years to 55 years for personal use, provided the individual gives consent every 10 years, and the other was a temporary two-year extension granted during the coronavirus pandemic in 2020.
In some cases, clinics failed to contact customers about the need to fill out consent forms for extended storage, kept the wrong expiry dates or medical details on file, or did not follow up on reminders. In other cases, patients missed emails because they said the urgency of the topic wasn’t clear enough. In many cases, clinics continued to accept annual storage payments, making patients feel that all was well.
James Lawford Davies, a partner at LDMH Partners who represents the group, said that although the fertility law change was “positive and well-intentioned”, in practice “clinics and patients found the new rules difficult to understand and apply”.
“The court cases have arisen as a result of errors, omissions and misunderstandings surrounding the new rules. The applications are of great importance to all patients involved, and for many, this represents their only chance to have a genetic child of their own.
“We hope that, in the future, the guidelines and storage approvals process will be clarified and simplified for patients and clinics alike,” he said.
Appearing at the High Court this week, Emma Sutton KC, representing the applicants, described how they felt “emotional” and “distressed” because they “would have given their consent had the process been carried out in the way it should have been carried out”. She added that their frustrations were compounded by waiting “in limbo” for almost a year, with “time of the essence” for some couples due to age or health issues.
She said the destruction of embryos contravened Section 8 of the Human Rights Act, which gives people the right to family life without interruption by the state, and that allowing them to extend the period of storage “would not undermine the fundamental purpose of the statutory scheme – which is the requirement of consent”.
Lawyers representing the UK fertility regulator, the Human Fertilization and Embryology Authority (HFEA), and the Department of Health and Social Care have expressed support for applications to be considered on a case-by-case basis, and have suggested that in cases where clinics have failed to notify people of the need to extend consent, patients are given a six-month window to arrange consent now.
Jeremy Hyam KC, from the Department of Health and Social Care, expressed concern that UK fertility law’s focus on effective consent could be undermined if there was a “free-for-all”, which could lead to some clinics adopting a “default position of indefinite storage” for fear of being held liable for any misunderstandings.
He did not agree that cases where people had been notified but it was due to the patient’s fault – for example failing to open emails, update addresses or log into internet portals – should be given the opportunity to extend consent.
HFEA representative Ravi Mehta noted the regulator’s “compassion” for the patients involved, and praised the clinics for their “candor” and willingness to admit their mistakes. He added that UK fertility law makes the clinic, not the patient, responsible for obtaining consent.
“[The patient’s] Wishes now are enough – no one asks for open relief, and this now takes approval as opening the door to everything.”
Mrs Justice Morgan, who heard the case, will deliver a written ruling in the coming months.