Modernising fertility law: HFEA's proposals

HFEA's recommendations to modernise and safeguard patient care

In November 2023 the Human Fertilisation and Embryology Authority (HFEA) set out a range of recommendations that they propose to modernise the outdated fertility law within England and Wales.

The HFEA is the regulator of the fertility industry and, as such, are heavily involved in patient care. Over the past few decades, fertility law has rapidly changed since the introduction of the HFEA Act 1990, and many legal decisions are made on the Family Law Courts reading down Acts. This is where the judges use their discretion to interpret what the meaning behind the Acts are. For example, there has been many cases around legal parenthood where families have had to show that they have intended to be recognised as legal parents, even if the regulations of the Acts were not fully met.These proposals have been broken down into four main areas:

These proposals have been broken down into four main areas:

• Patient safety and promoting good practice
• Access to donor information
• Consent
• Scientific developments
  
  In each of these, modernisation of fertility law will look at ensuring the best possible care for patients. In terms of looking at patient safety and promoting good practice, the HFEA is seeking strict controls and enforcement powers over licensed clinics to ensure that the regulations of clinics are meeting the strict legal requirements. This in turn helps those going through fertility treatment, ensuring that the relevant legal processes are met, so that the family makeup is how they wish for it to be in place. 
  
  Whereas access to donor information is recommended to change, largely because of recent changes to the law where donors can access information of previous anonymous donations.  The HFEA is seeking for donors to be able to access implications counselling sessions prior to treatment and to ensure that clinics have an obligation to donors and recipients as to the ability to now discover what is previously seen as anonymous donations. 
  
  The law also needs a drastic overhaul in terms of consent, and this is not only consent to treatment but consent to storage and use of embryos. There have been many cases where the judges have been left to use their discretion as to whether consent to treatment should take place, such as after death, destruction of embryos upon relationship breakups.  Therefore, having a clearer law around the circumstances of consent will be highly relevant to families, and particularly those families that are going through a separation. Lastly, scientific developments mean that the HFEA needs greater discretion to futureproof developments and that the law can be updated accordingly. This is also highly relevant to families where judges are left to consider individual circumstances based on outdated law, whereas the science has developed more than the legal relations have. 

Given that since 1990 the Act has only been updated once in 2008, which removed potential barriers to licensed treatment for female same sex couples and widen the scope of the definition of a parent, it led to a very complex legal parenthood regime, which is open to interpretations by the court. These interpretations can lead to a lack of security for those going through paternity treatment. There have been many calls for a development of laws throughout recent years and, since 2020 on the HFEA’s 30 anniversary but, whilst this has support from a few ministers, there have yet to be further bills throughout parliament.  Given fertility treatment has increased considerably and several families have now been formed with some sort of fertility treatment, it is important that the law is developed also to reflect the changes. At Tees Law we often speak to parents who wish to have checked their documentation that they have gone through, given that when undergoing fertility treatment, a considerable number of forms are filled in and some of these have important relevance regarding legal parenthood.  They also wish to have discussions around the issues of consent to storage on family breakdowns as the current family courts are limited to be able to deal with this.

Whilst the law may not be changing yet on fertility treatment, we welcome the growing cause for the development of an updated HFEA Act. 

Given the clinical negligence work that we undertake, it is also pleasing to see that the fertility regulator is working on dealing with increasing calls for patient safety through thorough risk-based inspection and licensing.  At the moment, most clinics are under licensing conditions and therefore they have to meet certain requirements.  There was a number of cases in 2015 onwards where licenses did not meet conditions, and this impacted upon parents being considered as legal parents and having to rectify this through complex lengthy court proceedings once the child was born.  The clinical negligence team are pleased to see that an increased emphasis on patient safety, and responsibility is being called for within the reformation of the law to minimise the impact upon patients.