Caroline Andrews reflects after speaking at AEPOCS conference

Caroline Andrews, Fertility Law Solicitor, was invited by the Androgen Excess and Polycystic Ovary Syndrome Society (AEPCOS) to speak on behalf of Verity (a national charity for PCOS) at their annual conference held in California, USA, in her role as a volunteer trustee.

At the conference, Caroline spoke about how essential it is that there is support for patients with conditions that may affect their fertility. However, that support needs to be not just medical intervention, but also emotional support and in an ever-complicated world, legal support as well.

After speaking at the AEPCOS conference on issues surrounding fertility it struck her that there are many significant differences between how Fertility Law is approached in the USA compared to England and Wales. Caroline talks below about her experience regarding fertility treatment and surrogacy in the USA compared to England and Wales.

“It was fascinating to see the difference between how the law surrounding fertility treatment and surrogacy is different in the USA from here.

In light of anti-abortion laws being proposed across some USA states, there is growing legislation surrounding embryos being given ‘personhood rights’ and due to the IVF processes, this will have a massive impact on fertility treatment. In England and Wales, we do not face that issue, the Human Fertilisation and Embryology Authority that regulate fertility treatment have clear guidance on how to store and utilise embryos. It was shocking listening to a number of American Women as to how quickly the repeal of Roe v Wade has already impacted upon them

In July this year, an amendment was passed that allowed the HFEA Act 2008 to increase the storage of embryos, sperm, and egg to 55 years. There are explicit conditions on the consent required from both parties involved with an embryo every ten years. There have been several cases in England over what constitutes consent where one person may have died. However, in USA there have been significant cases, most famously Sofia Vergara and her ex-partner, where the issue of consent after separation is challenged. Where freezing eggs, sperm or embryos are now being considered by more people it is important that they are clear on the pros and cons medically and legally around storing gametes

Some 15 states in the USA have legislated that medical insurance needs to include some access to fertility treatment due to the significant costs associated with it. In September 2022, the Competition and Markets Authority released its findings about fertility clinic compliance and a major issue was as to how patients are potentially being exposed to significant extra costs such as add-ons. Given the differences in health care systems and most treatment here is privately funded, the CMA report is important reading for anyone considering fertility treatment (video link to follow)

When looking at Surrogacy, given the law in England and Wales is considered ‘outdated’ as the surrogate is the legal parent until after a parental order post-birth, the law commission report on changes to Surrogacy law is still some way away from any implementation. That some people consider international surrogacy an attractive option. However, it is essential to be aware of restrictions in individual states and in England that may be on any Surrogacy arrangement.

As a patient representative in my spare time, I am well aware of the emotional, physical, and financial toll fertility treatment has on parties. However, as a family lawyer I do not feel that people ought to ignore the legal implications of treatment. Where those legal implications develop is yet to be seen….”