A change to the law on posthumous storage of gametes and embryos for patients who died before 1 July 2022 has been proposed and it is expected to come into force within the next month.

In the Code of Practice published in October 2023, the HFEA and Department of Health and Social Care (DHSC) acknowledged that changes to storage law made by the Health and Social Care Act 2022 had an unintended impact on a subset of patients. This change seeks to address this. It will only affect a small number of clinics who are currently storing the material of a specific cohort of who died before 1 July 2022 as outlined below.

Under the 2022 law, material can only be stored for up to 10 years after a person has died. Subject to parliamentary procedures, a further Statutory Instrument will be laid within the next month to allow a specific cohort of patients to continue to store their deceased partner’s eggs, sperm or embryos (created using their partner’s gametes) for longer than 10 years from the date of death in certain circumstances.

Who is affected by these changes?

The proposed new law will apply only to specific gametes and embryos already in storage. Most patients will not be affected. Please read the below carefully to assess whether your clinic has any affected material in storage.

The proposed new law in its current form will only apply to gametes and embryos where:

the patient died before 1 July 2022,
consent to storage had not expired at the point immediately before 1 July 2022 (regardless of whether a valid MPS was in place),
storage was for the patient and their partner’s treatment together (ie, not donation), including surrogacy, and
immediately before 1 July the material was in storage under the 2009 Regulations, 2020 Regulations or 1991/1996 Regulations.

Storage of material before 1 July 2022 that had not been subject to any of the above extension Regulations (ie, where the patient consented to storage for a maximum of 10 years) will not be covered.

What you must do

To prepare for the change, clinics should conduct an audit of stored material to assess whether they have any relevant material in storage so that the appropriate actions can be carried out once the law comes into force. Once you have completed your audit, if you determine that your clinic is not storing any material affected by this new law then you do not need to take any further action.

We do not recommend disposal of any gametes and embryos that are being stored posthumously until the new law comes into force (unless the partner or other gamete provider has withdrawn consent).

Please note that the new law is subject to change until it comes into force. More guidance to support clinics to carry out necessary actions will be available in the coming weeks.

If you have any questions, please contact your inspector.