Fertility and Family Law Trends

There have been significant trends and developments in fertility and modern family law over the last year. We have seen debate and new guidance on the merits of IVF ‘add-ons’. There has been increased focus on fertility preservation, including egg freezing and posthumous conception. There have also been changes and developments in surrogacy law and practice.

IVF ‘add-ons’

There has been growing debate and coverage about the efficacy and merits of IVF ‘add-ons’. As a result, the HFEA has today published a consensus statement together with 10 leading professional and patient fertility groups, on how IVF ‘add-ons’ should be offered ethically to patients undergoing treatment. This follows growing concerns about the benefits and costs of IVF ‘add-ons’ offered to fertility patients. The Chair of the HFEA, Sally Cheshire CBE said:

“It’s crucial that clinics are transparent about the add-on treatments they offer, including the potential costs, to ensure patients know exactly whether they are likely to increase their chance of having a baby.

“That is why we’ve been working with professional groups such as the British Fertility Society to decide how unproven treatments into clinical practice should be correctly and ethically introduced, which is a vital step towards a more transparent approach in fertility services.

“We are now expecting clinics to provide information about treatment add-ons to patients, including what evidence there is of effectiveness.”

This follows the HFEA’s decision to publish ‘traffic light’ rated information about the merits of IVF ‘add-ons’ in May 2018 and its updated guidance today. This system grades various ‘add-on’ treatments. A red rating signifies there is no evidence it is effective and safe. An amber rating signifies there is a small or conflicting body of evidence and further research is needed meaning ‘the technique cannot be recommended for routine use’. A green rating signifies there is more than one good quality trial which shows the procedure is effective and safe. However, currently none of the assessed ‘add-ons’ have been given a green rating and today’s HFEA guidance concludes ‘we don’t think any of these techniques should be used routinely.’

Significant numbers of fertility patients have invested precious time, energy and money in IVF ‘add-ons’ in the hope of having a much wanted child. Given this latest HFEA guidance about ‘add-ons’, it begs further questions about their use and benefit in treatment and the implications for patients and their families.

Fertility preservation

In today’s busy and uncertain times, there is more need than ever to consider fertility preservation and maximisation. Increasing numbers of people are leaving it longer to settle down and have children for a variety of reasons including, education, career building, economic factors and difficulties meeting a suitable partner.

Whilst we often ‘future proof’ other areas of our lives, many people are not taking adequate steps to preserve and maximise their fertility.  This can risk serious problems and heartache for those that go on to grapple with their own or a loved one’s dwindling fertility window, accident, illness or death.

Whilst egg freezing techniques have improved in recent years, there is still only limited data on success rates in practice. In 2016, egg freezing made up only 1.5% of the 68,000 treatment cycles carried out. Egg freezing is not risk free and it does not guarantee a baby.  It also carries a cost of between £7,000 – £8,000 for egg freezing, thawing and transfer.

Illness or death can strike at any time. Last year BBC broadcaster Rachael Bland went to great lengths to highlight her 2-year battle with breast cancer and her fight to preserve her fertility on her blog Big C Little Me. Her story continues to strike a chord with many women and you can read more on my blog and in my article in Female First.

There was also increased focus on posthumous conception last year. This follows a first-of-its-kind legal ruling last summer by The Court of Protection to step in and protect the sperm of a fatally injured man, who had been in the early stages of fertility treatment with his wife. I was part of the wife’s legal team and this ruling is significant because it sends an important message that in appropriate circumstances individual fertility and reproductive legacy is capable of protection. You can read more on my blog and in my comment piece.

Surrogacy law reform and practice

On 3 January 2019 new law came into operation which for the first time enables single people to apply for a parental order for their surrogate born child.  This is welcome news and follows years of calls for law reform by many in the sector including myself.

Single applicants must meet the relevant legal criteria, which includes being their child’s biological parent and applying within six month’s of the birth.  There is also a six month remedial window in which applications can be made for older surrogate born children within six months of the law changing i.e until 2 July 2019.

However, further reform is still needed to make outdated surrogacy law fit for 21st century family building in Britain. I was honoured to give expert evidence on surrogacy law reform to The All Party Parliamentary Group on Surrogacy (APPG on Surrogacy) led by Andrew Percy MP in parliament in November 2018. I was pleased to see lively discussion about the issues and to share my thoughts and suggestions for law reform following my legal work in this area over the last decade.

Fertility and family law for modern families continues to rapidly evolve. This makes it important for people to take time to understand the complex legal landscape and take proactive measures to preserve their fertility and protect their much wanted children and families.

Fertility preservation: Rachael Bland’s story

Last week, BBC presenter Rachael Bland’s fight to overcome her two-year breast cancer battle sadly came to an end. She was only 40 years old. She leaves behind her husband Steve and their young son Freddie. She also leaves behind four frozen embryos, following her battle to preserve her fertility.

Rachael shared her story on her blog Big C Little Me. She wrote compellingly about cancer and fertility saying on 19 February this year “Babies are probably not the first topic that springs to mind when you think about cancer but they were one of the first things I thought about after my diagnosis.  It’s another aspect of getting cancer that’s unique to being diagnosed when you’re young – the issue of what to do if you’ve not started or finished having a family”.

Rachael’s story will strike a chord with many women. She went to great lengths to preserve her fertility, even delaying chemotherapy to undergo an IVF cycle all over Christmas. She wrote on her blog “There are so many emotions to process when you’re first diagnosed and thinking about IVF as well might seem like a bridge too far.  But my advice would be to ask about fertility preservation, as you can give yourself some insurance pre-chemo but afterwards it might be a struggle.  You see, cancer treatment plays havoc with your fertility.  Chemotherapy targets fast-dividing cells, both the good and the bad and some of the fastest dividing are of course in your ovaries.  As a result, chemotherapy can leave you infertile and going into early menopause.  especially if you’re knocking on 40 like I was”.

Rachael’s four frozen embryos offered hope of another much wanted child had she overcome her battle with cancer. However, in undergoing IVF Rachael would also have completed consent forms at her UK fertility clinic stating her wishes for the storage and use of her embryos during her lifetime and in the event of her death. Depending upon her completion of these forms and her wishes, there might still be the possibility for her husband Steve to complete their family using these embryos in fertility treatment and surrogacy. 

As a fertility lawyer I have worked with many women over the last ten years who have been diagnosed with cancer and other serious medical conditions which have impaired or taken away their fertility and ability to carry a pregnancy. I have also worked with many women who have struggled to build a family in their late 30’s, 40’s and 50’s and seen the heartache caused by their diminishing fertility rates and unsuccessful fertility treatment cycles. As women increasingly delay starting a family into their 30’s and beyond, we need to do much more to proactively manage women’s fertility and its preservation. We need better education and more debate and awareness so women can make informed decisions and avoid crisis management.

You can read my further comment about fertility law and fertility preservation arising from Rachael’s story in my article in Female First.