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Fertility and surrogacy: A reflection on 2020 and a look forward to 2021

Posted on 6 January 2021

As a result of the COVID-19 pandemic, 2020 proved to be an incredibly challenging year for fertility patients and those engaged or seeking to engage in surrogacy arrangements. However despite the challenges, the pandemic has also placed a spotlight on certain issues and resulted in a number of positive developments in this area for those engaging in fertility treatment and surrogacy arrangements both domestically and overseas.

Law Commission surrogacy reform

Despite the significant development in IVF and fertility treatment in the past 40 years, UK laws have not kept up with the consistent calls for reform including from the Courts. The principal piece of legislation in respect to regulation of surrogacy in the UK is now over 35 years old and widely considered to be outdated and no longer relevant.  The Law Commission's consultation in respect to surrogacy reform closed in 2019, and its final recommendations are expected in early 2022.

The Law Commission's initial proposals included a suggested new pathway for domestic surrogacies allowing intended parents to become a child's legal parents at birth, together with a range of safeguards applying before a surrogacy arrangement is entered into. The recommendations will be eagerly awaited throughout 2021, as there remains a pressing need for reform and a need to bring legislation in line with developments in science and societal changes.

Fertility clinics

The news in early April 2020, that fertility clinics were required to close as a result of the Covid-19 pandemic, proved incredibly distressing for those undergoing fertility treatment. In May 2020, it was announced that fertility clinics could apply to reopen. In order to do so, clinics were required to meet strict COVID-19 safety requirements as outlined by the Human Fertilisation and Embryology Authority (HFEA) including demonstrating that they were able to provide a safe service for patients and safe working environment for clinic staff. Prior to clinics resuming treatment, it was necessary for clinics to have a COVID-19 treatment strategy in place. Despite the introduction of tighter restrictions by the Government in November and December 2020 and the January 2021 lockdown those clinics permitted to reopen in May 2020 remained able to operate, however, due to local circumstances it continues to be necessary for certain clinics to reduce their cycle numbers or suspend all treatments for the time being.

Extension to storage limits and further proposals

In recognition of the impact that the COVID-19 pandemic in respect to fertility treatment in July 2020, the Government extended the pre-existing 10-year storage limit for embryos and gametes by 2 years. 

The announcement coincided with a wider ongoing public consultation launched by The Department of Health and Social Care in February 2020 on gamete and embryo storage limits. Prior to the recent extension and as a result of legislation enacted in 1990, the maximum storage period for embryos and gametes was 10 years. That maximum 10-year storage period can be extended for up to a maximum storage period of 55 years, provided that certain premature infertility criteria are demonstrated at any time within each 10-year period. As a result of developments in fertility treatment and the significant improvements in freezing technology, questions have been raised as to whether the 1990 legislation remains fit for purpose. The 2-year extension to storage limits in light of the COVID-19 pandemic is nevertheless a step forward as the wider public consultation continues into 2021.

International surrogacy

The imminent arrival of a baby is an anxious time for all expectant parents. However, the COVID-19 outbreak resulted in particular challenges for intended parents of babies due to be born by way of overseas surrogacy arrangements.

The introduction of extensive travel restrictions and compulsory quarantine periods in many countries, including the US (where many couples look to engage in surrogacy arrangements), resulted in it being difficult, or impossible for intended parents to be present at the time of the birth. Certain jurisdictions, such as the US, created exemptions on travel restrictions for those with immediate family in the destination country. If, upon the baby's birth, the intended parents are recognised as the legal parents in that country, it was then possible for them to travel to meet their baby following the birth.

If travel restrictions or quarantine made it impossible for intended parents to be present at the time of the birth or immediately after, intended parents were required to give consideration to the appointment of another adult/s to act as guardian and/or attorney for the purpose of caring for the baby, making decisions if required in respect to medical treatment and for administrative purposes, for example, in order to make applications for birth certificates and passports.

Travel home for intended parents and babies has also proved problematic particularly in terms of obtaining the necessary travel documents. Whilst the UK Government has now introduced a new emergency UK passport application to assist intended parents to return to the UK with their surrogate babies, there have been situations in which intended parents have been required to stay in the country where the baby is born for longer than expected, in turn potentially resulting in immigration issues for intended parents.

In England, it remains the case that a Parental Order application must be made for the purpose of transferring legal parenthood from the surrogate to the intended parents. This application should be made within six months following the baby's birth. Whilst the English Family Court currently remains open, the Family Court is overburdened with an increase in applications such that there has been a delay in Parental Order applications being processed. Until such time as a Parental Order is made, intended parents in England do not have the necessary parental responsibility required for the purpose of making important decisions in respect to a child's welfare. Given the delays in the English Courts being able to process such applications, it has been necessary in some cases for other steps to be taken in order to manage the exercise of parental responsibility pending a Parental Order being made, for example by obtaining letters of authority from the surrogate.

HFEA guidance re import and expert of gametes and embryos

In recognition of the difficulties faced by intended parents in international surrogacy arrangements, the HFEA is set to clarify its guidance as to the export of gametes and embryos to overseas clinics, including in the case of commercial surrogacy and compensated surrogacy arrangements overseas, and in those circumstances whether special permission from the HFEA is required.

It was previously misunderstood that UK fertility clinics were required to seek permission from the HFEA in order to do so. The HFEA clarification will mean that provided UK clinics are satisfied that all necessary conditions are met, including that the overseas clinic meets the necessary safety requirements (as provided for by a General Direction of the HFEA), it may export without having to apply for special permission from the HFEA notwithstanding that the intended parents may be engaging a commercial surrogacy agency overseas.

This is welcome news for intended parents wishing to enter into overseas surrogacy arrangements in light of the extensive and continued travel restrictions. It is also hoped that the pace of change brought about in part by the pandemic in 2020, will continue throughout 2021 in order to make the route to modern parenthood far more straightforward for many more.

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