Fertility clinics could face legal action over embryos

Hundreds of embryos could be destroyed illegally if the case of one human embryo, the destruction of which has been temporarily restrained, results in a victory, warns the Allied Lawyers Response Team (ALeRT), the personal injury lawyers' network.

ALeRT's head Graham Ross has urged fertility clinics to suspend the destruction programme of all embryos until the case has been concluded, to prevent unnecessary legal claims.

He secured the three-week emergency restraining order on the embryo on behalf of a woman whose estranged husband would not sign the consent form.

The embryo, along with thousands of others, was due to be destroyed on 1 August after the expiry of the maximum five-year storage period imposed by the Human Fertilisation and Embryology Act 1990.

The Act stated that embryos could only be stored for more than five years if patients consented to it.

Ross argued the embryo was donated before the 1991 law came into effect and the original consent for the embryo's storage, which did not have a time limit on it, still stood. “We maintain that a consent issued before the Act came into force is sufficient to comply with the May regulations,” he said.

He added that clinics which had failed to contact patients about the law change also faced action.

“The liability of clinics is likely to be not for complying with the Act but for not making contact with the patients beforehand to give them the opportunity to consent to an extension,” he said.

The Human Fertility and Embryology Authority (HFEA) has been advising clinics on their storage of embryos.

Guidelines issued to clinics posed the question of whether legal action was more or less likely if the clinics went ahead and destroyed the embryos.

“While nobody can guarantee that a case will not be brought, it is difficult to see how it can succeed as clinics have no option but to comply with the law set out in the 1990 Act,” the guidelines stated.

HFEA spokeswoman Jennifer Woodside commented: “Clinics have known when the five-year storage period would expire since the Act was passed and most of them will have been motivated to write to patients at least every one to two years for the collection of storage fees.”

She added: “We also reminded clinics well over a year ago that the 31 July 1996 deadline was coming up.”

The Official Solicitor, Peter Harris, whose duty is to protect the interests of children refused to intervene in the destruction of embryos last week, saying a child acquires legal rights only if it is born alive.