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Storage of Embryos

Volume 497: debated on Monday 12 October 2009

The Petition of people who have embryos stored under the terms of the 1990 Human Fertilisation and Embryology Act and the regulations made there under and others,

Declares that the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 (S.I., 2009, No. 1582), dated 25 July 2009, a copy of which was laid before this House on 1 July, does not provide for the preservation of embryos whose statutory storage period has expired; is concerned that in circumstances where people have stored embryos under 1991 regulations ahead of medical treatment that renders one or the other of them infertile that the lack of transitional regulations in S.I., 2009, No. 1582 will result in embryos being destroyed against the express wishes of the donor.

Further declares that the Human Fertilisation and Embryology Authority supported the case for allowing people in such cases to have access to further extensions to the storage period.

The Petitioners therefore request that the House of Commons calls upon Her Majesty's Government to bring forward further regulations to allow for the continued storage if embryos for those who actively desire it in order that they might use them to have a family by means of surrogacy and act immediately to suspend the destruction of such embryos where the donors so wish.

And the Petitioners remain, etc.—[Presented by Mr. Paul Burstow, Official Report, 21 July 2009; Vol. 496, c. 857 .]

[P000402]

Observations from the Secretary of State for Health Department, received 18 September 2009:

Under the current law, human embryos may be stored for five years. In certain circumstances, extension of storage may be allowed. However, this does not include cases where the woman to whom it is intended the embryo will be transferred would be acting as a surrogate. This is because of concerns about surrogacy at the time the legislation was made.

The Government have reviewed the storage provisions, to enable more people with premature infertility to benefit from them. The new legislation will increase the maximum storage period for embryos from five years to 10 years, and in addition will provide that storage can be extended for rolling periods of further ten years (up to 55 years in total) if a registered medical practitioner provides a written opinion that the person for whom the embryo is being stored is prematurely infertile. Under the new system, in cases where it is intended that the embryos are to be used in a surrogacy arrangement and the criteria set out in the regulations are fulfilled, the storage period may be extended.

However, this new legislation does not apply to embryos that have run out of time on 1 October 2009, and which therefore are outside the current legal storage time limits. Although only a small number of women are in this situation, we all appreciate that for them it is tremendously important as it is their chance to have a child. The dilemma is morally straightforward—we are sympathetic to these women and have been urgently seeking ways to help them—but legally it is very complex.

As a result of very careful thought and consultation with our lawyers, we have found what we believe is a solution. We are making an Order under section 64(1)(a) of the Human Fertilisation and Embryology Act 2008 to enable the 10 year rule to apply to embryos that are out-of-time on 1 October 2009 on the basis it would be ‘supplementary provision’ to section 15(3) of the 2008 Act.

The Order will mean that these embryos can remain in storage for 10 years from the date they were first put into storage. Therefore, for instance, an embryo subject to the current five year storage limit that has been in storage for six years on 1 October 2009 will be able to be stored for a further four years. The Order will be effective from 1 October 2009. It does not affect the legality of out-of-time storage before 1 October 2009.

The Government’s overriding priority is to have in place a legal mechanism that will prevent these embryos from being destroyed. We have therefore concentrated our efforts on producing the Order to achieve that from 1 October 2009. From what we know of the circumstances of the women affected, that will give them a number of years of additional storage.