The UK's Human Fertilisation and Embryology Act 1990 requires that human gametes (eggs and sperm) and embryos collected and stored by fertility clinics be destroyed after ten years, except in cases of premature infertility. This time limit applies to women often referred to as 'social' egg freezers irrespective of the age of the woman when the ten-year limit is reached; it applies equally to women who froze eggs when aged 25 and those who froze eggs at 45.
A fertility clinic that fails to destroy a woman's eggs when the storage limit is reached will be acting in breach of the conditions of its licence issued by the Human Fertilisation and Embryology Authority, and so will face losing that licence. The licence holder will also be criminally liable and subject to a fine and/or a prison sentence of up to two years.
Understandably, therefore, fertility clinics must take care not to allow any eggs to be stored in excess of the statutory limit. As the limit approaches, and where the woman has confirmed that she does not wish for her eggs to be destroyed, it is standard practice for clinicians to review the medical records to ascertain whether there is any indication of premature infertility, such as a low (relative to age) Anti-Müllerian Hormone level or Antral Follicle Count, both indicators of the number of egg follicles remaining in the ovaries. Where there is evidence to satisfy a clinician that a woman is prematurely infertile she will be granted a reprieve. Her eggs will saved and can be lawfully stored for a total of 55 years.
For women facing the prospect of destruction of their eggs the diagnosis of premature infertility will be welcomed with relief – surely in itself an indication of the absurdity of the law.
For those 'unlucky' enough to be given a clean bill of health as far as their fertility is concerned, their options will be as follows: thaw the eggs and use them for treatment before the limit is reached (possibly using a sperm donor depending upon circumstances), thaw the eggs and create embryos which can be immediately frozen for a further ten years (again, possibly using donated sperm) or arrange for the eggs to be moved to a clinic in a country that has a longer storage limit (which will necessitate any future IVF treatment also being carried out abroad).
The ten-year limit was set almost 30 years ago, back in 1990, at a time when the methods for freezing and thawing eggs were far less reliable than they are today. There is now little difference in success rates using fresh eggs versus frozen eggs, but due to normal age-related decline in the quality of eggs, clinicians will usually recommend that a 40-year-old woman uses eggs that she froze when she was 30 rather than using 'fresh' 40-year-old eggs.
But what if the 40-year-old woman froze her eggs when she was 29? The eggs would have reached the statutory limit she was 39, and despite having undergone an expensive and invasive procedure to plan for future fertility issues, at 40 she would have to use her poorer quality fresh eggs, or she might be advised to use much younger donor eggs.
Perhaps she would instead have opted to create an embryo before the limit was reached, which could then be put back into the freezer for a further ten years? If she did not have a partner she might have needed to use donor sperm and would, therefore, have lost the opportunity to create an embryo with a future partner. If she did create an embryo with her partner, he could withdraw his consent for continued storage within the additional ten-year period, with the effect that the embryos would be destroyed.
What if she were a little older, say 38, when she froze her eggs, and so faces the destruction of those eggs when she is 48? Some people are bound to say that 48 is too old to start a family, but in fact over 2,300 babies were born to mothers aged over 45 in 2017, the last year for which statistics were published. There is no upper age limit at which fertility treatment becomes unavailable to women in the UK; the HFE Act 1990 and the HFEA require clinicians to undertake an assessment before providing IVF treatment – using their professional judgment – as to the welfare of any child who may be born as a result of the treatment. Many clinics in the UK will offer IVF treatment to women into their fifties, subject to this consideration.
So, a woman who is prematurely infertile can use eggs she froze at 25 to access IVF treatment when she is 45 or 50 years old, but a woman with normal fertility cannot. When analysed this way it is absolutely clear that the ten-year limit is arbitrary and has no sensible application.
In spite of the obvious flaws there is presently no indication that the Secretary of State for Health intends to instigate a review of the statutory limit. This leaves those women whose eggs are approaching the limit and who do not wish to (or are unable to) access treatment or move the eggs abroad, with legal action as the only route to protect their eggs from destruction.
Salima Budhani and Theodora Middleton of the law firm Bindmans LLP are advising a number of women in relation to test case litigation which aims to challenge the ten-year limit.