A group of at least 15 fertility patients are taking legal action to prevent their frozen embryos being destroyed as a result of administrative errors that could deny them a chance to have children.
The group, which includes people with cancer and fertility problems, froze gametes or embryos to improve their chances of conceiving later on, but were informed by their clinics that owing to administrative errors they had not renewed their consent in time and would not be able to access their embryos or extend their storage without a court order.
In some cases, people only learned of the errors when they approached the clinic about their plans to have a child and for some it is their only hope of conceiving naturally. In other cases, clinics approached couples after internal audit processes and apologised for their errors but notified them that they could only extend storage through a court order.
The errors relate to two changes in law. One took place 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, the clinics failed to contact clients about the need to fill in consent forms to extend storage, held the wrong expiry dates or medical details on file, or did not follow up on reminders. In others, patients missed emails because they said the urgency of the subject matter wasn’t clear enough. In several cases clinics continued to accept annual storage payments, leaving patients feeling that everything was in order.
James Lawford Davies, a partner at LDMH Partners representing the group, said although the fertility law change had been “positive and well intentioned”, in practice “clinics and patients have found the new rules difficult to understand and apply”.
“The cases before the court have arisen as a result of errors, oversights and misunderstandings surrounding the new rules. The applications are hugely significant for all the patients involved and, for many, this represents their only chance of having their own genetic child.
“We hope that, going forward, the guidance and process for storage consents can be clarified and simplified for patients and clinics alike,” he said.
Appearing in the high court this week, Emma Sutton KC, representing the applicants, described how they felt “emotional” and “distressed” since they “would have given their consent had the process been put into effect in the way it should have”. Their frustrations had been exacerbated by waiting “in limbo” for nearly a year, with “time of the essence” for some couples because of age or health problems, she added.
She argued that destroying the embryos would be in conflict with article 8 of the Human Rights Act, which gives people the right to a family life uninterrupted by the state, and that permitting them to extend storage “would not undermine a fundamental objective of the statutory scheme – namely the requirement for consent”.
Barristers representing the UK’s fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), and the Department for Health and Social Care outlined their support for considering the applications on a case-by-case basis, and proposed that in the cases where clinics had failed to notify people of the need to extend consent, the patients be given a six-month window in which to now arrange consent.
Jeremy Hyam KC for the Department of Health and Social Care expressed concern that UK fertility law’s emphasis on effective consent could be undermined if there were to be 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 miscommunication.
He disagreed that the cases in which people had been notified but it had been the patient’s error – for example failing to open emails, update addresses or log into online portals – should be granted the opportunity to extend consent.
Ravi Mehta, for the HFEA, noted the regulator’s “sympathy” for the patients involved, and commended the clinics for their “candour” and willingness to admit their mistakes. He added that the UK’s fertility law made the clinic, not the patient, responsible for securing consent.
“[The patient’s] wishes now are sufficient – no one is asking for open-ended relief, that takes consent now as opening the door to everything,” he said.
Mrs Justice Morgan, who heard the case, will provide a written judgment in the coming months.
