Patients go to court to stop embryos being destroyed after admin error | Fertility problems

A group of at least 15 infertility patients are suing to prevent their frozen embryos from being destroyed as a result of administrative errors that could ruin their chance to have children.

The group, which includes people with cancer and fertility problems, froze gametes or embryos to improve their chances of conceiving later, but the clinics informed them that due to administrative errors they did not renew their consent in time and would not be able to access their embryos or extend their storage period without a court order.

In some cases, people only found out about the mistakes when they went to the clinic about their plans to have a baby, and for some it is their only hope of conceiving naturally. In other cases, clinics reached out to couples after an internal audit and apologized for mistakes, but informed them that they could only extend the retention period with a court order.

The errors are related to two changes in legislation. One of them took place in 2022 and extended the maximum storage period for embryos and gametes (eggs and sperm) from 10 years to 55 years for personal useprovided that the person consents every 10 years, with the second being a temporary two-year extension granted during the 2020 coronavirus pandemic.

In some cases, clinics did not contact clients about the need to complete extension consent forms, kept incorrect expiration dates or medical information on file, or did not respond to reminders. In other cases, patients skipped emails because they said the urgency of the topic wasn't clear enough. In some cases, clinics continued to accept annual storage fees, leaving patients feeling like everything was fine.

James Lawford Davis, a partner at LDMH Partners representing the group, said that while the fertility law change was “positive and well-intentioned,” in practice, “clinics and patients have found the new rules difficult to understand and apply.”

“The cases that went to trial arose as a result of errors, omissions and misunderstandings related to the new rules. The applications are of utmost importance to all patients involved, and for many, this represents the only chance to have a genetic child of their own.”

“We hope that in the future, the guidance and process for obtaining consent for storage can be clarified and simplified for both patients and clinics,” he said.

Speaking at the High Court this week, Emma Sutton CC, representing the applicants, described how they felt “emotional” and “distressed” as “they would have given their consent if the process had been carried out as it should have been”. Their frustration was compounded by waiting “in limbo” for almost a year, and for some couples it was “the most important time” due to age or health problems, she added.

She argued that destroying the embryos would contravene Section 8 of the Human Rights Act, which gives people the right to a family life uninterrupted by the state, and that allowing them to have an extension of storage “would not undermine the fundamental purpose of the statutory scheme, namely the requirement of consent”.

Lawyers representing the UK's fertility regulator, the Human Fertilization and Embryology Authority (HFEA) and the Department of Health and Social Care stated their support for processing applications on a case-by-case basis and suggested that in cases where clinics did not notify people that they needed to renew consent, patients should be given a six-month window to complete consent.

Jeremy Higham, from the Department of Health and Social Care, said he was concerned that UK fertility law's emphasis on effective consent could be undermined if there was a “free for all”, which could lead to some clinics adopting a “default provision of indefinite storage” for fear of being held accountable for any misunderstanding.

He disagreed that in cases where people had been notified but it was the patient's error – such as failing to open email, update addresses or log into online portals – there should be an opportunity to extend consent.

Ravi Mehta, a spokesman for the HFEA, noted the regulator's “compassion” for the patients involved and praised the clinics for their “candor” and willingness to admit their mistakes. He added that UK fertility law places the responsibility for obtaining consent on the clinic, not on the patient.

“[The patient’s] there are enough desires now – no one is asking for indefinite relief, which perceives consent now as opening the door to everything,” he said.

Judge Morgan, who heard the case, will issue a written decision in the coming months.