Karen Holden from A City Law Firm on the latest developments around egg freezing and how they can help working women who want to plan their families years in advance.
This month saw the sad loss of Queen Elizabeth II, an inspiring Head of State and a working mum with four children, working right up until her 90s. During her reign women in the workplace and the social choices they have have evolved and many laws which have supported and protected women’s rights have been passed. A recent inclusion in the Health and Social Care Act 2022 has assisted with widening women’s choices further.
There are both traditional and non-traditional routes to motherhood. The latter has seen a shift in recent years and, since 2019, there has been an increase in women choosing to freeze their (unfertilised) eggs. This can be for a number of reasons, one of which is in order to use them at the optimum time in their lives for starting a family. Statistically, if eggs are frozen from a woman below the age of 35, the chances of success when they are used are higher. Many women, however, have made the decision to freeze around or over the age of 35 in light of storage timeframes.
A Government consultation was commissioned in 2020 which included a review of the storage time for frozen eggs. Under the Human Fertilisation and Embryology Act 1990 the term for frozen egg storage was 10 years. Subsequent changes to the Act through the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 allowed an extension of the baseline storage limit for 10-year periods, up to a maximum of 55 years, but only on medical grounds.
More recently, in response to the disruption to fertility services during Covid-19, the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) (Coronavirus) Regulations 2020 were introduced, allowing for an additional two-year storage in addition to the maximum base limit of 10 years for those with material in storage on 1st July 2020.
The consultation findings have led to the Health and Social Care Act 2022 which, from 1st July 2022, permits clinics to store eggs, sperm or embryos for use in treatment for any period up to a maximum of 55 years from the date that the eggs, sperm or embryos are first placed in storage.
The clinic in which the eggs are stored will contact you every 10 years to renew consent and therefore the administration of all of this will be vital. If you do not renew your consent to storage, your eggs will be removed and disposed of and will no longer be lawfully stored. This does very much require the updating of contact details and for the clinics to be on top of contacting the individuals at the 10-year point.
This ability to store eggs for such lengths of time does clearly increase the possibility of delaying motherhood, which can facilitate establishing perhaps more financial security or a chosen career path when having children. The thinking behind the extension is that it allows a pre-planning period for a woman in her 20s onwards so that she can freeze her eggs and, should she wish to and subject to her consent, use them in her 40s when she may feel more socially and economically ready to have a child.
There is no age limit on fertility treatment, but many clinics do have a guidance cut-off age for medical reasons after which they are less encouraging of treatment. The Human Fertilisation and Embryology Authority encourages clinics to have ethics committees who can review cases on a case by case basis and quite often the age at time of treatment is an issue because of the medical and social impacts it can have not only on the intended mother but also the child.
Overall, this change in legislation around egg storage recognises the social reasons for longer storage periods and takes the pressure off women which shorter timeframes put on them to make decisions about when the frozen eggs should be used. For example, pre-July 2022 if the eggs were frozen when a woman was 40 years old, they would be in a situation where the eggs were unlikely to be as viable as they would have been when the same person was aged 25. Moreover, they would have only had 10 years in which to use the eggs, so if they had frozen their eggs at 25, they would need to have used them by age 35 which may not have been the timeframe that was suitable for that individual.
Similarly, freezing at 40 years old would also mean use by 50 years old, at which point, and dependent on the clinic, not only would the eggs be much less viable but the pregnancy risks would increase. Also depending on the clinic, there may be issues with proceeding with treatment.
Under this new legislation, the ability to freeze eggs at aged 25 and to then use them at 45 years old if the woman wishes, is now possible. This extends not only the period in which the storage is legal, but also the ability of a woman to make the decision when the time is right and to know her eggs then have the best possible chance of success. This enables and widens the possibility of a viable pregnancy at the optimum time, without the woman being subjected to the pressure of having to make a quick decision or risk losing the eggs. Although this may seem a small change in the scheme of fertility law, the resulting widening of choice that it brings to women and their ability to have children will be far-reaching.
It is always advisable to ensure that experts review and advise on the terms of any storage facilities before entrusting them with such a precious thing as the possibilty of future life. It’s good to understand and discuss the issues around consent, making sure that you understand the renewable aspects to avoid losing access as well as the policy on withdrawing the eggs, transfer or cancellation options. There may also be legal implications around fertilising the eggs at a later date, what to do when something goes wrong or the storage provider seeks to amend their terms or costs so it is important to make sure specialist lawyers can help you be clear about your obligations and theirs.
*Karen Holden is founder of A City Law Firm.