In vitro fertilisation (IVF) has become one of the most revolutionary medical and scientific advancements of our time.
IVF is the process of fertilisation that takes place outside of the human body with the embryo being returned to the body to be carried through to birth. While the treatment is not guaranteed to be successful, IVF has transformed the lives of millions, offering those with fertility issues the potential to conceive a child.
However, there are many risks involved, both health-wise and in legal terms.
If you are considering IVF or are already in the process of receiving IVF treatment, it will be important to understand the law in this area.
The IVF process, and the rights of the parties involved, are governed by many areas of law, from employment legislation and confidentiality rules to restrictions on the storage of embryos.
In this guide to IVF laws in the UK, we look at the current rules on entitlement to IVF treatment and the limits on NHS-funded treatment, as well as the limits on the number of embryos that can be used in a cycle of treatment. We also look at the embryo storage limit rules, the rules around posthumous use, the gender selection rules and rights around confidentiality. Finally, we look at any right to time off work when undergoing IVF and for IVF-related pregnancies.
What is the legal entitlement to IVF treatment?
In vitro fertilisation (IVF) is one of a number of fertility treatments legally available in the UK to help with getting pregnant. As an assisted conception treatment, this is suitable for those with a wide range of fertility issues and, as such, is the one of the most commonly used techniques. Unfortunately, this treatment is not readily available on the NHS for everyone, where the costs associated with IVF treatment are significant, and the chances of a successful pregnancy for women over the age of 42 are also thought to be too low.
Fertility guidelines issued by the National Institute for Health and Care Excellence (NICE) set out who should have access to NHS-funded IVF treatment in England and Wales, where it is recommended that IVF should only be offered to women under 43 who have been trying to conceive naturally through regular unprotected sex for a minimum of 2 years. The guidelines also recommend IVF for those who have undergone 12 cycles of artificial insemination, with 6 cycles using a method known as intrauterine insemination (IUI).
However, in England, the final decision about who can have IVF on the NHS will be made by integrated care boards (ICBs), whose criteria for their particular locality may be stricter than those recommended by NICE. For example, some ICBs only fund treatment for women under 35. Your local ICB may also have additional criteria that must be met before you can have NHS-funded IVF. These could include not having any children from both your current and previous relationships, being a healthy weight and being a non-smoker. If the ICB-criteria are not met, you will need to pay for private treatment. The cost of privately-funded IVF can vary, where a single cycle of treatment may cost up to £5,000 or more.
What are the limits on NHS-funded IVF treatment?
According to the NICE guidelines, women under 40 should be offered 3 cycles of NHS-funded IVF treatment if either they have been trying to conceive for a total of 2 years or they have not been able to get pregnant after 12 cycles of artificial insemination, where 6 or more of these cycles are by IUI. This means that if you turn 40 during IVF treatment, the current cycle will be completed, but further cycles will not usually be offered.
The NICE guidelines also say that women aged between 40 to 42 should be offered only a single cycle of IVF on the NHS if the above criteria are met ‘and’ they show no evidence of low ovarian reserve, where eggs in your ovaries are either low in number or quality. Additionally, to qualify under these guidelines, you must have never had IVF treatment before and have been fully informed of the additional implications of IVF and pregnancy at this age, where the risk of miscarriage and birth defects increases the older you get.
Importantly, even though NICE recommend that a woman under 40 should be offered up to 3 cycles of IVF on the NHS, some ICBs only offer one cycle or only offer IVF in exceptional circumstances. You should ask your GP or contact your local ICB to find out whether NHS-funded IVF treatment is available in your area. ICB’s replaced clinical commissioning groups (CCGs) in the NHS in England from 1 July 2022, where you can find the details of your local ICB online by referring to the NHS website. Although NHS trusts across England and Wales are working to provide the same levels of NHS-funded assisted conception services, the provision of IVF treatment can vary and depends on local ICB policies.
What are the limits on the number of embryos transferred in IVF?
When it comes to the number of embryos that can be transferred in the context of each cycle of IVF treatment, there are also limits. This will be discussed before treatment starts, although a maximum of 2 embryos may be transferred during a single cycle of infertility treatment in women aged under 40 years, and no more than 3 in women over this age. These legal limits are in place to minimise the occurrence of multiple pregnancies, where an older women is less likely to be successful overall and are therefore less likely to have 3 embryos successfully implant in the womb. Still, a decision to use 3 embryos is rare.
If you have more than one good quality embryo available, it is now considered best practice in the UK for most women to have only a single embryo put back in the womb and to freeze the rest. This is to reduce the chance of you having either twins, triplets or more, which can pose serious risks to your own health and to the health of your unborn babies.
IVF embryo storage rules
When undergoing IVF, fertilisation takes place outside the body. This is a multi-step process in which an egg is extracted from the woman’s ovaries and fertilised with sperm in a lab. The fertilised eggs, known as embryos, will continue to grow in the laboratory for a period of up to 6 days before being implanted into the women’s uterus, where the best 1 or 2 embryos will be chosen for transfer into the womb in the hopes of forming a pregnancy. However, if any suitable embryos are left over, they can be frozen for future IVF attempts.
The law in the UK relating to the storage and use of embryos is governed by the Human Fertilisation and Embryology Act 1990 (as amended), where embryo freezing is permissible under the Act. Additionally, following a recent change in the law on 1 July 2022, patients can now have embryos stored for their own treatment for up to 55 years, providing they re-consent every 10 years. This new law also applies to the storage of eggs and sperm.
The increased timeframe, where the law previously only allowed for storage of embryos and gametes for a period of 10 years, means that people have far more time to make decisions around treatment and starting or adding to their family. Still, under UK law, fertility clinics first have to get written consent from those involved, not only for creating embryos in vitro and to the patient receiving IVF, but for storing embryos, eggs and sperm. This means that if the relevant consent is not held by a clinic, an embryo cannot be stored and subsequently used and any leftover embryo(s) may be allowed to perish.
Posthumous use of embryos in IVF
As with the storage of embryos, written consent is needed to use a patient’s embryo or gametes in the event of their death in the UK, although in a recent decision handed down on 22 June 2022, the High Court has allowed a husband to use an embryo created by IVF with his wife for birth by surrogacy, even though the wife did not provide written consent.
However, ample evidence was made available to the court that the deceased wife would have provided written consent to posthumous use of the embryo for birth by a surrogate if she had been given that option. On the facts of the case, the wife had completed a number of consent forms, but was never offered the different prescribed form for this type of use.
Importantly, this decision was made on its facts where, in most cases, if you would like the option to use a frozen embryo or gametes in the event that a partner or spouse passes away, it is important that they provide their signed consent to this use to make their wishes clear.
IVF & gender selection rules
As with many countries, under UK law, selecting the gender of a child is expressly prohibited. Specifically, the Human Fertilisation and Embryology Act 2008 — which amends the 1990 Act — provides that a licence for a fertility clinic cannot authorise any practice designed to secure that any resulting child will be of either one sex or the other.
The only exception to this prohibition is where there is a particular risk that any resulting child will have or develop a serious gender-related disability, illness or medical condition. As such, gender selection will be legally permissible in the UK, but only if undertaken by a clinic to avoid the risk of genetic transmission of sex-linked diseases or other conditions.
IVF & patient confidentiality
If you undergo fertility treatment, this will be confidential. By law, your information cannot be divulged to any other person without your consent, including your GP if you seek private treatment without consulting with your GP first. In these circumstances, the details of your IVF treatment will also not appear on the records of your future child or children.
The only exceptions to the rules around confidentiality are during an emergency or if genetic information is required for a procedure. This is because fertility clinics are regulated by the Human Fertilisation and Embryology Authority (HFEA) and, as such, are required to disclose information to HFEA or other licensed centres in case of emergency, in the context of legal procedures and if a complaint is made or genetic parental information is required. Clinics are also required to register all patients undertaking IVF with the HFEA.
Where IVF has been carried out using the eggs and/or sperm from donors, the identity of any anonymous donor will not be disclosed at the time of treatment. However, new legislation in the UK has abolished the anonymity of gamete donors — a sperm, egg and embryo donor — to extent that children born from donated gametes will be permitted to obtain identifying information about their genetic parents when they are 18 years old.
Right to time off work for IVF treatment
Unfortunately, despite the fact that many people struggle to conceive naturally and may need to undergo assisted conception treatment, there is no legal right to time off work for IVF treatment or any IVF-related sickness. Still, your employer should treat your IVF appointments and any sickness in the same way as any other medical appointment or sick leave, where you should check your contract of employment to see what provisions are made. In many cases, an employment contract will make additional provision, over and above an employee’s basic statutory rights, when it comes to taking time off work.
You may also want to discuss with your employer about any time off you may need during IVF. You are not legally obligated to inform your employer of your intentions, although you might find it helpful as they could offer support. For example, they might agree to you using flexible working, as well as either unpaid time off or using any accrued annual leave.
It is also worth noting that once you have undergone the last part of the IVF profess, where the embryo is transferred into your womb, you will be protected against unfair dismissal and unfair treatment related to your possible pregnancy if your employer is aware that you might be pregnant. Even if the IVF is unsuccessful, you will still be protected by law against pregnancy discrimination for a period of 2 weeks after finding out that IVF did not work.
Importantly, having become pregnant through IVF, you will have all the same pregnancy and maternity rights as non-IVF pregnancies when it comes to your employment, including the right to statutory maternity leave. You may also be eligible for statutory maternity pay (SMP), provided you meet the earnings and continuous service requirements.
IVF laws FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
