LSE research identified how current UK law on egg freezing breaches human rights, and can increase the emotional and financial costs for women seeking treatment.
What was the problem?
The UK’s Human Fertilisation and Embryology Act 1990, as amended, set a 10-year limit for the storage of embryos and gametes that had been collected for use in fertility treatments. Regulations passed in 2009 allow for extended storage, up to a maximum of 55 years, for patients who are, or are likely to become, “prematurely infertile”. This option for extension works well for men who freeze their sperm because they are about to undergo treatment, such as chemotherapy, which may leave them infertile.
Since this legislation was introduced, a new egg-freezing technique (known as vitrification) has become available which enables women who are concerned about their age-related fertility decline to freeze their eggs. This is not “premature” infertility, and so most women who freeze their eggs are ineligible for an extension and can store their eggs for 10 years only. If a woman freezes her eggs at the age of 25, she would face their mandatory destruction when she is 35, before she is likely to want to use them.
What did we do?
Professor Emily Jackson has been carrying out research into the ethical, legal, and social implications of assisted conception techniques since the late 1990s. A key theme of her first monograph, Regulating Reproduction: Law, Technology and Autonomy, and subsequent publications, is the need to take seriously reproductive autonomy and to recognise that both infertility and its treatment are stressful and difficult, and that prospective patients need help and support in order to make sense of their options. Jackson’s recent research has focused on the commercialisation of assisted conception services. Most fertility treatment in the UK is provided by the private sector, and it is recognised that clinics can oversell and overtreat, for example by offering services for which the evidence base is poor or non-existent.
In her 2016 Journal of Medical Ethics article, Jackson raised the unfairness of the statutory storage time limits for women who freeze their eggs. These rules were not drafted with the interests of egg freezers in mind and, Jackson argues, they are – unintentionally – contrary to their interests and to good clinical practice.
The 10-year storage rule creates an incentive for women to wait to freeze their eggs until their late 30s, after their fertility is already in decline, so that they have until their late 40s to use them. At this point, women are likely to need to undergo more cycles of egg retrieval to have a sufficient number of eggs to freeze.
Furthermore, if a 25-year-old egg freezer has her frozen eggs destroyed when she is 35, should she subsequently struggle to conceive, she might find herself having to use donor eggs, which would have been unnecessary if her own eggs had been stored for longer. The forced destruction of a person’s gametes under the 10-year rule undoubtedly represents an interference with her right to a private and family life.
The solution, Jackson argues, is not to get rid of the storage time limit altogether, but to allow for an option for extension after 10 years for women who have not yet decided whether they want to use their frozen eggs in treatment.
In her 2018 BioSocieties article, Jackson tackled some of the broader ethical issues raised by social egg freezing, which she describes as an ambiguous technology. Looked at positively, it could be said to liberate women from the biological constraints of age-related fertility decline. At the same time, some commentators have suggested it represents a medical solution to a social problem that also widens the gap between rich and poor women’s experiences of childbearing. Jackson argues that, while egg freezing undoubtedly offers women more options, it is important they receive clear and robust advice about the likelihood that they will use their eggs, and the fact that most IVF cycles result in failure. Egg freezing is expensive and invasive, and certainly does not guarantee a future baby.
Professor Jackson’s research has underpinned significant policy interventions aimed at reforming the law on egg freezing. Since 2018, Jackson has worked closely with Baroness Ruth Deech, former Chair of the Human Fertilisation and Embryology Authority, and the Progress Educational Trust to campaign on this issue.
In 2019, Baroness Deech introduced the Storage Period for Gametes Bill to the House of Lords, which, if passed, will provide the option of extended storage for women who may still want to use their frozen eggs for fertility treatment. Jackson advised on the Bill and its drafting, which also contained a requirement for the Department of Health and Social Care to open a consultation on the subject. The government launched such a consultation in 2020, noting that there are “important arguments to consider about reproductive choice for women and how the current legislation may affect that”.
Alongside these legislative efforts, Jackson has worked with the Progress Educational Trust (PET) which has been spearheading an advocacy campaign entitled “#ExtendTheLimit”.
In line with her work to improve women’s access to information about the implications of fertility treatments, in 2016 Jackson was an adviser on the Timeless project, created to inform and engage women on the subject of egg freezing. This included a pop-up “shop” in London’s Old Street tube station, which featured a range of fictional beauty products, branded Timeless and with names like “Eau so Pressured”, to communicate the facts around egg freezing in a visually arresting way. Jackson contributed to the project’s short film and was a panellist for its event, “Should You Freeze Your Eggs?”. The project received widespread press and broadcast media coverage. In the New Scientist, Agatha Haines hailed Timeless for addressing the knowledge gap:
"This pop-up provocation provided women with an opportunity to discuss an intimate issue in an intimate setting. Time spent here showed me how to think about an idea whose revolutionary promise is matched only by the dearth of public information about it."
Banner image credit: Rosalie Schweiker