The British Fertility Society has published its awaited recommendations for the government and the HFEA on how UK fertility law needs to be modernised. The report ‘Proposals for revision of the Human Fertilisation and Embryology Act 1990 (as amended), 2023’ is available in full here.
Part of our mission at NGA Law has always been to support our community, to evolve the law to make it workable and to create positive change for families created through assisted reproduction. As part of that work, Natalie Gamble has been delighted to contribute to the Law Policy and Ethics Special Interest Group of the British Fertility Society which has worked on these proposals.
Why is the British Fertility Society making proposals about reform of UK fertility law?
In 2021 new HFEA Chair Julia Chain indicated that the Human Fertilisation and Embryology Act needed to be modernised, and that the Human Fertilisation and Embryology Authority was planning to prepare a document for the Department of Health about the changes it felt were needed. The UK’s laws on regulation of fertility treatment, embryo research and legal parenthood were written in 1990 and revised in 2008, but a lot has changed since then and the HFEA felt that the law needed another review.
The British Fertility Society (which represents the multi-disciplinary professional community of andrologists, counsellors, embryologists, endocrinologists, nurses and others professionals working in UK reproductive medicine) wanted to contribute substantively to that discussion and so convened an expert group to make its own proposals for change which could inform both the HFEA and the UK government.
Natalie has been delighted to be part of the group of academic, legal and clinical experts, which have over the past two years worked hard on creating a comprehensive set of proposals addressing the current deficiencies – and potential solutions – with UK fertility law. It is great to see its recommendations, adopted by the Executive of the BFS, published.
What is the British Fertility Society recommending?
The BFS paper sets out a wide range of recommendations for law reform, including on legal parenthood, consent to storage of embryos and gametes, how gametes and embryos are used after someone has died, research, the licensing system, the HFEA Register of Information and confidentiality. In particular, Natalie was pleased to contribute to the group’s work on legal parenthood and posthumous conception, which are the areas of law we grapple with at NGA Law every day.
Chapter 3 of the paper deals with legal parenthood, and highlights many of the difficulties caused by the current law which it says “can be extremely complex and has not kept pace with the growing diversity of family structures and personal identities”. It explains the continuing difficulties the Family Court is having to deal with in sperm donation cases because the law makes minor administrative errors at fertility clinics critical in determining legal parenthood. It highlights the growing use of known sperm donors and the need for a more flexible approach as to whether someone is a donor or a legal parent which allow for more than three parents. It advocates for inclusion of transgender parents in the legislation. It highlights obstacles faced by women who are separated from their spouses and want to proceed with fertility treatment on their own or with a new partner. It sets out how the law forces a surrogate and her spouse to become legal parents of children they do not consider theirs. It criticises areas in which the law discriminates against unmarried couples and modern families, and where the rules around consent to donation are too inflexible.
Ultimately the conclusion is that a complete overhaul is needed. The British Fertility Society says: “Rather than trying to micromanage legal parenthood conditions in the HFEA Act for every possible social situation, a more fundamental review of parenthood and birth registration is needed… It would simpler if, for all relationship options, legal parenthood were grounded in the intention to be a parent…. If there is a wider review of the law on legal parenthood and birth registration as part of consideration of any Surrogacy Bill, then fertility treatment should be part of such a review.”
What next?
It is too soon to say if or when the law might change, and we are also mindful of the Law Commission’s recommendations for review of UK surrogacy law, which may or may not be combined with any wider project on UK fertility law. There is at present no government commitment to an update of the law on either front. However, what is certain is that pressure is mounting for the law to be modernised to reflect the rich diversity of UK families.
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