Embryo storage law leaves some parents out in the cold

Natalie Gamble was quoted in the Sunday Times on 5 July (and in the Daily Mail on 6 July) on problems raised by the government’s proposed new embryo storage laws.

Fertility law allows people facing medical treatment which will make them infertile to store eggs, sperm or embryos for the future. Since embryos can normally only be stored for 5 years, the special embryo storage laws offer a vital lifeline to many young patients undergoing cancer treatments and other medical problems, allowing embryos to be stored for much longer than 5 years. This gives people the time they need to recover from their treatment and make sure they have the all-clear before having a family, giving vital hope at often a very bleak time.

The government is now updating the embryo storage laws to allow more people to benefit, including patients who will need the help of a surrogate mother to carry their embryos in the future.

The change makes complete sense. Under the existing law, only women who are able to carry their own embryos qualify for extended storage, and this restriction has proved very unfair in practice. Take, for example, two women both suffering cervical cancer in their early 20s. The first woman is facing chemotherapy, and she is allowed to store embryos to preserve her chance to have her own child until she is 55 (giving her plenty of time to recover from her cancer and to decide on the right time to start a family). The second woman is facing a hysterectomy, and so knows she will need the help of a surrogate mother to carry her genetic child in the future. She is only allowed to store her embryos for 5 years, which in practice is rarely enough time for her to recover from her illness and find a suitable surrogate mother willing to help (assuming she is ready to do all this in her early 20s). And if she wants a bigger family, she can pretty much forget it.

The distinction barring extended storage for surrogacy is cruel in practice, and the government’s decision to widen the law is very welcome. It recognises that in practice a high proportion of the women the law was designed to help are by definition unable to carry a child as well as being unable to produce eggs.

However, an oversight has left some out in the cold. Although the new rules are deliberately retrospective, and most people facing surrogacy with embryos already in storage will benefit from the new rules, anyone whose five year storage period expires before 1 October 2009 will not be able to apply for extended storage. For those affected, it’s all a matter of timing: embryos first stored for surrogacy after 1 October 2004 will now be able to be stored until at least 2059, but anyone who stored embryos for surrogacy on or before 29 September 2004 will face their destruction this autumn.

There is no rational reason for this arbitrary distinction, and the impact on the people affected is disproportionately severe. As the UK’s leading fertility lawyers, we are calling for the government to look at the proposed new embryo storage laws again before the new rules come into force on 1 October and to ensure that no embryos have to be destroyed unnecessarily against the wishes of the people who created them.

More on embryo storage law from our website.

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