Fertility treatments: coronavirus reignites storage limit debate

Out-Law Analysis | 03 Jun 2020 | 4:04 pm | 3 min. read

The UK government should look to extend the current 10 year time limit on storing frozen eggs, sperm and embryos in England permanently after recently agreeing to a temporary extension.

The government's welcome decision to apply a temporary two year extension to the 10 year statutory limit gives people undergoing fertility treatment during the coronavirus outbreak more time to continue their treatment, but there is growing support for a permanent change.

The government's announcement coincided with the end of a wider consultation the Department of Health and Social Care (DHSC) held on extending the current 10 year storage limit. That consultation, which ended on 5 May, was announced earlier this year in light of advancements in freezing technologies and campaigning on the issue by parliamentarians and interested parties.

The Human Fertilisation and Embryology Act 1990, as amended, limits storage of embryos and gametes for fertility treatment purposes to no more than 10 years, save that 10-year extensions may be sought up to 55 years' maximum storage if premature fertility can be medically verified within each 10-year period.

Back in the early 1990s, slow-freezing methods were not providing sufficiently viable survival rates and it was believed that 10 years would be long enough for most women, in particular, contemplating egg cryopreservation to seek fertility treatment. However, 30 years later, with many couples and individuals seeking to start families later in life, the Act is arguably forcing men and women in the UK to delay freezing cryopreservation until later in life, when the optimum time to freeze may be sooner, and others are facing the prospect of being forced to destroy their gametes or embryos.

The UK's Human Fertilisation and Embryology Authority (HFEA), and Europe's commissioner for human rights, are sympathetic towards extending the 10-year period. Sally Cheshire, chair of the HFEA, commented on the recent consultation that "the time is right to consider what a more appropriate storage limit could be that recognises both changes in science and in the way women are considering their fertility". The HFEA's formal response to the DHSC storage limits consultation was submitted on 13 May.

Many industry professionals favour an extension to the storage limits too. One of them is Dr Mara Kotrotsou, chief medical officer at Apricity, a consultant in gynaecology and reproductive medicine.

Dr Kotrotsou said: "The egg, sperm and embryo freezing techniques currently used in the embryology lab are very efficient and there are no technological limitations to the storage period. It is indeed really good news to see positive progress being made in the extension of the storage period, particularly so at times when fertility preservation treatments are becoming more popular."

The debate on whether to extend the storage limits comes at a time when many fertility clinics in England will be focusing on providing fertility treatments again. The government granted clinics the right to reopen from 11 May after the Covid-19 lockdown was partially lifted, in a welcome boost to the fertility industry and families undergoing treatment.

The Covid-19 lockdown will likely have been a particularly anxious period for people eager to commence or those in the middle of a fertility treatment programme, with fertility services having been suspended from 23 March 2020. Support organisation Fertility UK has reported a marked increase in calls and emails received from worried fertility patients, with many potential mothers fearing that the delay could be the difference between them being a biological mother or not.

Dr Kotrotsou said: "The fertility clinics are preparing to restart their services and systems are being put in place to minimise the risk of transmission of the virus to patients and staff. It is good news that patients will now be able to discuss their cases and any risks involved with their clinical teams and will be given the choice to resume treatment or wait a bit longer. Now more than ever we will stand by our patients to help them decide what is best for them. It is also reassuring that evidence shows short delays in starting treatment are not detrimental to most treatment outcomes."

Clinics must apply to the HFEA to reopen. They must demonstrate a Covid-19 treatment commencement strategy before reopening, which must:

  • record the measures that the clinic will be taking to comply with current guidance on safe and effective treatment and the mitigating actions taken in relation to each risk;
  • record the risk assessments undertaken by the clinic to identify risks arising from the provision of treatment and the mitigating actions in relation to each risk;
  • record the practical and logistical measures the clinic will be taking to deliver treatment safely and in a manner that mitigates the risks arising from, or associated with, Covid-19 for both patients and staff; and
  • record all new or revised standard operating procedures or protocols which have been developed to enable treatment to resume safely whilst maintaining compliance with the government’s current requirements relating to freedom of movement and social distancing.

Dorian Rees is an expert in corporate transactions in the fertility sector at Pinsent Masons, the law firm behind Out-Law.