My Lords, the Government reviewed all the provisions of the Human Fertilisation and Embryology Act 1990 in 2006-07, which led to the 2008 Act and associated regulations, including the 2009 storage regulations. I have been informed that the Government have no plans to formally review the relevant provisions in the Act on gamete storage at this stage. The department’s legal advice is that the current law appears to be compatible with the relevant human rights law.
Does the Minister appreciate that this lack of compassion and misunderstanding of the law is going to bring defeat in the courts soon? The storage period of 10 years for frozen eggs was set when little was known about the science, so women either exercise that option when they are at the best age—say, 25—and have to have them destroyed at 35, when really needed; or wait until a less optimal age and still have to have them destroyed when most needed, the entire exercise having cost thousands of pounds. Will the Government not enact a simple regulatory change, costing nothing, which will end this interference with private and family life under human rights law—and the indirect discrimination—and give hope to thousands of women?
I acknowledge that there have been societal changes which have led to women having children later, and technological advances in fertility treatments and freezing. However, I do not agree that the regulatory route that the noble Baroness proposes would be appropriate, as it was not envisaged at the time of the legislation. The strength of this regulation is that it had clinical, parliamentary and public support; given that this is such sensitive legislation, I hope we can continue that going forward. That is why the Government and I believe that continuing with primary legislation is appropriate.
My Lords, does the Minister realise that if a medical condition is the determining factor and has left a woman prematurely infertile, the eggs can be stored for up to 55 years, as is the case with sperm? Therefore, the science has changed. The Government need to recognise that 10 years is an arbitrary and unfair limit. If eggs can be stored for longer, surely this situation is unfair and cruel to women who wish to use those eggs after the 10-year period, for a variety of reasons. Will the Minister ask for a review of the law, and if primary legislation is needed, could it be included in the next Queen’s Speech?
The noble Baroness is right: the 2009 regulations were not just concerned with fertility options for people who are already adults. The 55-year limit is intended for those who become infertile through serious illness or side-effects, which can happen in childhood. I understand the concerns about the 10-year limit—there was no consensus during the 2009 review—but it is being continually reviewed and will remain under review by the department.
Can my noble friend the Minister say what the Department of Health and Social Care is doing to publicise the fact that it is preferable for women under the age of 35 to harvest their eggs, because after that age the effect is not as good? I realise that some women do not have a choice, but some private firms take a lot of money from women as they get older without telling them of the disappointments they might face.
My noble friend makes an important point about the success rate of fertility treatment through the freezing of eggs, which is roughly comparable with IVF at 26%. It is important that false hopes are not raised and that women are not exploited in these very sensitive situations.
My Lords, the Minister has just claimed that the current law has public support. Can she say how recently that was explored and what the result was? Also, does the time limit have any effect on a woman’s decision whether and when to have her eggs harvested, and when to use them? Has any research been done on that and if not, why not?
The noble Baroness is absolutely right that it is important that we continue to support the Bill. I was trying to clarify that I did not think it appropriate to bring forward a change of this nature under regulations. If we were to introduce a change that had a broad effect, it would be appropriate to do so in primary legislation with appropriate parliamentary scrutiny, consultation and clinical support.
My Lords, if I may, in the absence of the noble Lord, Lord Winston, I will take his perch—as long as nobody tells him that. The question of the science has been referred to. As far as we know, 26 years is the longest that an embryo that was subsequently born managed to survive. However, nobody really knows—we know only of the ones that have been reported. As for how long an embryo might survive, a study that measured the cumulative index of background radiation in mice suggested that when the mice embryos were subjected to increasing levels of cumulative radiation, they survived up to the equivalent of 2,000 years. Therefore, a 10-year limit has no scientific basis. Does the Minister agree?
I would never argue with the noble Lord, Lord Patel, on any scientific matter. My information is that there was no scientific or biological basis for the 10-year limit. It was based on debate and discussion of societal, ethical and cultural considerations, and on the concern that without a maximum limit, there would be questions about storage banks. Vitrification techniques are far more effective now than the slow-freezing techniques, so it is appropriate that these scientific questions are taken into account as this remains under review in the department.
My Lords, is this not just a case of discrimination? Practically every man in this room could still father a child, but none of the women could. This is very similar to when the pill was brought into our lives. This is about extending women’s rights to their fertility, women’s rights to work and women’s rights to plan their lives. As we have heard from many noble Lords, the science is with us; it is only the culture and the politics that are against us.
I have a great deal of sympathy with the position the noble Baroness has just presented. As I say, the 10-year limit remains under review but I do not think that replacing it through regulation in the simple way the noble Baroness, Lady Deech, suggested would be appropriate. It would need to be dealt with in primary legislation and we would need to make time for that in the House. At the moment, that is not a realistic prospect.