LDMH Partners successfully assisted in 14 out of 15 applications brought by a group of claimants. The claimants were patients seeking court declarations permitting the continued storage of their gametes and embryos. These applications arose where consent had not been renewed in accordance with a new statutory scheme, introduced by the Health and Care Act 2022 to amend the Human Fertilisation and Embryology Act 1990.
In AA and Others v. HFEA and Others [2026] EWHC 317 (Fam), the High Court provided important clarity on how the updated storage regime for gametes and embryos operates where renewal for consent has not been provided due to errors. The judgment is particularly significant for fertility clinics managing new storage rules under the 2022 Act and for patients whose stored material is at risk of disposal despite their wishes for continued storage.
The Updated Regulatory Framework
The Health and Care Act 2022 introduced fundamental changes to the Human Fertilisation and Embryology Act 1990 in relation to statutory storage limits for gametes and embryos. From 1 July 2022, the maximum storage period was extended from 10 years to 55 years, subject to the requirement that patients renew their consent every 10 years. The 55‑year limit, which had previously been restricted to patients able to demonstrate premature infertility, became available to all patients irrespective of medical need.
The Transitional Arrangements (1 July 2022 – 30 June 2024)
The 2022 Act also introduced transitional arrangements for patients who were already storing gametes and embryos under the previous provisions, and whose consent to storage was due to expire during a defined transitional period, which ran from 1 July 2022 to 30 June 2024.
Under Part 2 of Schedule 17, clinics were required to contact relevant patients before 30 June 2023 to seek renewed consent. The deadline for patients to provide renewed consent was 30 June 2024 (the end of the transitional period). Consent was deemed withdrawn where clinics had contacted patients in writing to renew consent, but where renewed consent had not been provided by the patients within the transitional period. As a result, clinics were legally required to remove and dispose of gametes from storage on 1 July 2024, and embryos on 1 January 2025.
The Applications
Following the end of the transitional period, a number of patients discovered that their consent had not been renewed due to administrative errors – whether by the clinic, the patient, or both. On the basis that consent was deemed withdrawn, clinics were legally obliged to remove the material from storage and dispose of it in accordance with the regulatory scheme, contrary to the patients’ own wishes.
With no statutory mechanism to rectify renewal failures after the deadline had passed, an emergency out-of-hours order was obtained to preserve the material pending litigation. A claim was then issued on behalf of the group of 15 applicants. Each sought declarations permitting the lawful continued storage of gametes and embryos, notwithstanding that their consent had expired and had not been renewed during the transitional period. The applications relied on statutory interpretation in the light of the applicants’ Article 8 right being engaged – the right to respect for private and family life.
The Judgment
Of the 15 applications, 14 were successful. Although the applications were heard together, each decision turned very much on its own facts.
The central question identified by Mrs Justice Morgan DBE in determining each application rested on whether or not the applicant was provided with a fair and reasonable opportunity to renew consent in accordance with the legislation, with consideration given to individual circumstances.
The Court granted relief where it could be demonstrated that patients had not been provided a fair and reasonable opportunity to renew consent in accordance with the legislation, notwithstanding the expiry of the transitional deadline. The Court considered whether a ‘fair and reasonable opportunity’ had been provided to the applicants across a range of circumstances, including:
- Clinics failing to write to all relevant patients to seek renewed consent due to administrative errors;
- Siloed clinic practices and communication, with correspondence relating to payment for storage operating independently from consent renewal processes, which contributed to patients failing to renew their consent for storage;
- Clinics not following their own protocols when seeking renewal of consent from patients; and
- Written notifications being sent to the wrong address, despite patients having provided their updated details to the clinic.
In addition to the above circumstances, some applications also involved issues around whether patients had been properly advised about longer storage options under previous storage rules. This included instances where applicants would have been eligible to store their material for 55 years on the basis of premature infertility, as well as instances where patients would have been eligible to extend their storage from 10 to 12 years under the Coronavirus Regulations 2020.
In the circumstances, the Court considered that the applicants had not been provided with a fair and reasonable opportunity to renew their consent, and were therefore granted relief to permitting continued storage.
The sole unsuccessful application related to circumstances where the applicants had changed their wishes in relation to the storage of their embryos. The Court drew a distinction between renewing consent and changing consent, holding that an error in paperwork could not be relied upon to recharacterise a change of mind regarding continued storage.
Practical Implications for Clinics
This judgment offers valuable clarity for fertility clinics navigating the amended consent regime, including in situations where administrative error results in missed renewal deadlines. It reinforces the importance of rigorous administrative compliance for fertility clinics, including accurate record keeping, reliable communications, and adherence to internal protocols.
In summary, the judgment highlights the need for clinics to:
- Review and strengthen their consent renewal procedures to ensure all patients are contacted using current, verified contact details;
- Avoid fragmented operational and communication systems that separate consent and payment matters;
- Ensure relevant staff are adequately trained to identify and discuss extended storage with patients, including staff who are in contact with patients regarding payment;
- Maintain comprehensive records of all attempts to contact patients regarding consent renewal; and
- Implement robust quality assurance processes to identify administrative errors before storage deadlines expire.
Contact Details
If you would like further information about this case, please do not hesitate to contact Emily Knight (emily@ldmhpartners.com).
Disclaimer
This article is for general information only and does not constitute legal advice. Please contact us in the event you have any specific questions: info@ldmhpartners.com
