Surrogacy and Fertility Treatment Update and New Caselaw

Time is the most valuable commodity. For those eager to start a family via assisted reproduction, time is priceless.  The current pandemic and its impact on guidance to fertility clinics continues to throw this into sharp focus.   

The updated guidance from the Human Fertilisation and Embryology Agency (HFEA) at the end of last week does not provide good news for many couples.  The General Direction issued by HFEA on 23rd March 2020 [which was updated on 28th March in relation to time limits for the storage of frozen eggs, sperm and embryos- more, here] makes clear that the Direction requiring clinics to stop all fertility treatment by 15th April 2020 remains in place until revoked.  Any current cycles had to be finished by that date and no new cycles started.  The only permitted treatment relates to non elective fertility preservation. 

The updated Guidance provides no indication of when this restriction will be lifted.  Whilst it is being kept under constant review, the lack of a timeline is another blow to those already in a hugely stressful situation. It will do little to reduce the anxiety of being stuck, ever conscious of time ticking away.

This update follows hot on the heels of the Supreme Court’s recent decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14.  This case deals with damages to cover the cost of surrogacy where a woman was rendered infertile in consequence of medical negligence. The woman attended for smear tests and follow up appointments over several years.  Failures to detect treatable irregularities resulted in the woman developing cancer, which most likely could have been avoided.  The treatment for cancer meant that she was unable to bear her own children.

The court decided that in principle damages could be paid for the cost of surrogacy.  By majority, the court also ruled that even commercial payments which would not be lawful for UK surrogacy could be paid in damages to allow commercial surrogacy in California.  This was caveated by limiting factors which centred around the reasonableness of obtaining treatment abroad rather than the UK, and costs. 

The decision highlights how social attitudes towards surrogacy have changed rapidly, with reference to the Law Commission and Scottish Law Commission’s Joint Consultation Paper (Building families through surrogacy: a new law) (2019) (LCCP 244, SLCDP 167). The Consultation paper acknowledges that there have been developments in law, significant advances in fertility treatment and the need for regulation cannot be ignored.  Society has become much more comfortable with the ethics and science of surrogacy, and more accepting of a wider definition of 'family', that includes children born via surrogacy arrangements.

This case serves as a reminder that public policy is not fixed and will evolve with social attitudes and scientific advances. That takes time though-  and that is one of the most precious things for people trying to start a family via assisted reproduction. It's to be hoped that the Government and the HFEA are able to act fast to adapt to the new challenges brought by COVID-19 for these families.