The Legal Aspects of Freezing Eggs and Sperm

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News this week that a US-based law firm is now offering to fund fertility treatment for staff comes amid a widely-reported growing demand under COVID for egg freezing, as women look to preserve their fertility after life has been put on hold during the pandemic.

The statistics show a continued increase of people looking to freeze eggs for later use. There can be no doubt that for some people it is great option, but it is extremely important that anyone considering fertility-preserving treatment, such as egg or sperm freezing, makes a fully informed decision about whether it is right for them.

There is no substitute for research, and asking questions, but there are a number of key points you should always consider:

1. Timescales

At present, there is a 10-year limit on the storage of frozen eggs or sperm, unless there are medical grounds for the treatment, in which case, deadlines are longer. If the eggs or sperm are not used by the end of that period, they are destroyed.

A woman freezing her eggs in her 20s may still not be ready to start a family in her 30s and it is important to think ahead about whether the timescales will work for you.

Sadly, we have seen clients who have been left devastated when their 10 year window has expired. There are calls for the law to change, but whether it will, and when, is unknown and for now, we are stuck with the rules as they stand. We also don’t know if they would apply retrospectively.

2. Consent

It is very important to think carefully about what consents you want to give for the use of your eggs or sperm in the future. No-one likes to think of the worst happening, but it is important to think about whether you would want your partner to use your eggs or sperm to have a child if anything happened to you.

There have been a number of high-profile cases (most famously, the Diane Blood case) which have tried to resolve the question, after a tragic event has happened.

Whilst you can’t plan for every eventuality, it is worth making sure you have thought about things like this, and what you would want.

3. “Ownership”

Some couples freeze embryos, rather than separate eggs or sperm. What you may not realise is that can have a fundamental impact on what you can or cannot do in the future.

As the law stands, both parties must give their continuing consent to storage and or use of the embryos. If either party withdraws their consent, the embryos must be destroyed after a set “cooling off” period.

There is no provision as the law stands here, as there is in some US states, for separated couples to litigate over “custody” of embryos, and go on to use them in future.

There is also no provision legally for orders to be made for the embryos to be preserved and used in the face of one parties’ refusal. It’s crucial to be aware of this before taking the decision to progress to fertilisation.

4. Donation

Some clinics offer reduced fees for fertility preservation if you agree to donate eggs or sperm, as well as storing them for your own use.

Egg and sperm donation can be a wonderful thing and allow others to create families they could not otherwise have, but it’s not something you should do on a whim, to make an immediate financial saving.

It is important to have counselling about the implications of being a donor, and to think about the future - what could you find out, what couldn’t you find out and how would you feel?

In this country, donation is anonymous and only certain information is released but, DNA tracing websites such as “Ancestry” and “Find My Past” are changing the way people can trace their family tree and access information about their genetic origins.

It’s important to understand all the practical implications of donation. There are some wonderful resources available, including the Donor Conception Network, which can help you consider everything you need to know.

There can be little doubt that as companies such as the law firm this week start to introduce fertility funding policies into employment benefits, there will only be a further increase in those availing themselves of such treatments. As it becomes more mainstream, it is more important than ever that the law is fit for modern-day practice, and that there is enough information available for people to make informed decisions.

If you need help with the legal aspects of sperm or egg donation, our specialist Fertility Law team can help you.

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