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Couple's frozen embryos may be destroyed under new law

16 November 2009
Appeared in BioNews 534

A couple from County Derry in Northern Ireland have taken legal action to halt the destruction of their embryos, currently being stored at the Royal Jubilee Maternity Hospital, Belfast.

The embryos, which represent the couple's last chance of having genetic children, narrowly missed falling under the clear protection of new laws governing embryo storage in the UK. Under the old laws, embryos could be stored for a basic statutory period of five years. Storage could be extended for up to ten years, or until the woman being treated reaches the age of 55, in circumstances where due to medical reasons the embryos represent the couple's last chance of having genetically-related children. The new laws, which were enacted under the Human Fertilisation and Embryology Act 2008, and came into force on 1 October 2009, significantly relax restrictions on embryo storage. Importantly for this case, the 55-year old age limit for intended embryo recipients has been abolished. Instead, it is the embryo which is subject to a 55-year storage limit.

Unfortunately for the couple from County Derry (who have been granted anonymity pending a decision on their request to have the case heard in private), the woman turned 55 days before the new law came into force. Under a correct application of the old law the embryos ought to have been destroyed. Accordingly, the continued retention of the couple's embryos is technically a criminal offence.

This case centres on whether destruction of the embryos in question in contrary to the right to family life under the European Convention on Human Rights. The couple are asking the court to order first, that their embryos not be destroyed, and secondly, for permission to transport the embryos to the Republic of Ireland in the event that their first request cannot be granted. In the meanwhile, the couple have been granted an injunction guaranteeing that nothing will be done to the embryos until the case has been decided.

The new laws governing embryo storage have proved complicated and controversial. The laws were revised weeks before they were to come into force following several legal challenges (see previous BioNews articles, 'Revised rules allow couples to store embryos for longer' in BioNews 525 and 'Cheshire woman may lose frozen embryos under new laws' in BioNews 516) and lobbying.

The couple are considering putting the Health Secretary on notice as a potential respondent. At present however, the case has been adjourned until later in the month.

Couple in embryo court battle
BBC News |  11 November 2009
Embryo couple’s identity revealed
BBC News |  25 November 2009
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