Egg-freezing legal challenge in prospect

18th March 2019 Family Law

A 51-year-old woman is preparing for a judicial review of rules which currently prevent her frozen eggs from being stored for more than 10 years. As things stand, the woman’s eggs would be destroyed later this year. She would prefer to keep the option open of using them until she reaches the age of around 55 at which point, she says, fertility clinics would be unlikely to accept her for treatment.

She is seeking crowdfunding for her legal fees and states that she and many other women in a similar position:

“..froze our eggs about ten years ago. We are not currently in a position to use those eggs, for different reasons. We have not been found to be prematurely infertile, and so we face having our eggs destroyed in the coming months, before we have a chance to use them.„

Although the applicant is 51, the time-limit which can only be altered in cases of “premature infertility„ could affect a large number of women of all ages as the number of women undertaking so-called “social egg-freezing„ has increased markedly in recent years. If a woman froze her eggs in her late twenties, she could easily come up against the ten-year time-limit at an age when many of her contemporaries would be becoming pregnant for years to come. Commentators have cautioned about the success rates of fertility treatment following egg-freezing, so it is important to maintain realistic expectations, but it is one of the many options for building families. With freezing techniques improving, longer-term storage of gametes is possible. As so often in the field of building families and fertility, the law appears to lag behind social norms and scientific advances.

If the case proceeds, it could be another in a series of legal challenges where individuals have pushed at the boundaries of UK fertility law to bring about significant change. In 2015, a single man applied to the court for a parental order, in order to acquire legal parenthood of a child that was biologically his. At the time, only couples (same-sex, opposite-sex, married or unmarried) could apply for a parental order. The President of the Family Division declined to make the parental order because the man was not part of a couple but at the same time, he declared that the law breached the man’s human rights and gave official notification of this to the government. Eventually, at the beginning of this year, the law was changed, enabling single applicants who have a child through surrogacy to obtain a parental order. Eligible single applicants who wish to obtain a parental order in respect of a child born before the new legislation came into force have a six-month window (ending at the beginning of July 2019) in which to apply for a parental order.

In many ways, UK fertility law is progressive and (largely) non-discriminatory but it can be uncertain, especially where international surrogacy arrangements are involved. There is real room for improvement and our team looks forward to the much-anticipated Law Commission consultation on creating a modern surrogacy law.

The JMW building families and fertility team will be exhibiting at this year’s Manchester Fertility Show this week (Saturday 23 and Sunday 24 March). Partner, Cara Nuttall, will be speaking on the Sunday about legal issues that cab arise when building families through surrogacy, co-parenting and donation. If you’re going to be at the show, make sure you’re there for the seminar (10.45am start). If you are considering your fertility options and want to know more, contact us for an informal discussion.


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Jo-Anna Jellings is an Associate Solicitor located in Manchester Londonin our Family department

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