Judge rules frozen embryo law is Parliament’s remit

The only prospect for changing the law on ‘frozen embryos’ lay with ministers and not the courts, ruled the High Court judge presiding over the controversial case of the two women who lost their battle to save their embryos from destruction.

Natallie Evans and Lorraine Hadley, who started legal action when their former partners withdrew their consent for any further IVF treatment, are presently considering taking their cases to the Court of Appeal. The women challenged the Human Fertilisation and Embryology Act 1990 (HFEA), under which embryos must be destroyed unless there is consent from both parties. Evans’ ovaries were removed following the discovery of pre-cancerous cells and the embryos represented her only natural chance of having a baby. Hadley underwent IVF because she suffers from polycystic ovary syndrome, a condition that affects fertility.

Schedule 3 of the HFEA 1990 states: “An embryo, the creation of which was brought about in vitro, must not be kept in storage unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo…” The women argued that the embryos were ‘used’ when they were fertilised. The men said they would only be ‘used’ once implanted in the women.

Mr Justice Wall told the court that he had “considerable sympathy” for the women, but that the laws governing IVF treatment were clear. “In my judgment, in this sensitive area of the law, it is for Parliament to legislate,” he said. “It is an area in which the courts have only a limited role to play.”

Suzi Leather, chairman of the Human Fertilisation and Embryology Authority, said that it was “very important that people who are going for fertility treatment understand the law which governs what happens to embryos in storage. Both parties must give their consent, not only for embryos to be created, but also to be stored,” she continued. “If one partner withdraws their consent the embryos cannot be stored any longer.”

According to the authority, clinics must have consent from both parties to continue to store embryos for IVF treatment. If either partner withdraws their consent then clinics must allow frozen embryos to perish.

See: Evans v Amicus Healthcare Ltd & Ors, and Hadley v. Midland Fertility Services and Ors