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These Regulations make transitional provision under section 186(9) and (11) of the Health and Care Act 2022 (c. 31) (the “2022 Act”) in relation to the storage of gametes and embryos for the treatment of a certain cohort of people who died before 1st July 2022. That is the date on which Part 1 of Schedule 17 to the 2022 Act introduced amendments to the Human Fertilisation and Embryology Act 1990 (c. 37) (the “1990 Act”): (a) to extend to 55 years the maximum storage period for gametes and embryos which is provided for in section 14(3) of the 1990 Act and (b) to enable storage of such material for up to 10 years after the death of the person who provided it, after which their consent is taken as withdrawn. Part 2 of Schedule 17 to the 2022 Act made general and specific transitional provision in connection with the effect of those amendments on material already in storage. These Regulations add to the specific transitional provisions in that Part by addressing the duration of consent for the storage of gametes or embryos which began before 1st July 2022, where a person whose material was placed into storage for the purposes of infertility treatment had died before that date and where the maximum storage period applicable to the material was governed by the Regulations referred to in regulations 2(1)(b) and 3(1)(b) of this instrument. In such cases, the maximum period for which the material may be stored is determined by those Regulations, with effect from 1st July 2022, as if the Regulations had continued in force. The new 10 year limit applicable to storage of gametes and embryos after a person has died is also disapplied (regulations 2 and 3).
The maximum storage period for gametes and embryos which was available under the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 (S.I. 2009/1582) (“2009 Regulations”) was ten years from the date of first storage, or if later, ten years from the date of the most recent opinion of a medical practitioner that the person who provided the material, or the person with whom they were to be treated, was, or was likely to become, prematurely infertile (“medical opinion”), up to a maximum of 55 years. The medical opinion had to be given before the expiry of each ten-year period (referred to in the 2009 Regulations as the “relevant period”), including posthumously. Regulation 4, paragraphs (3) to (10), addresses situations where a medical opinion would have fallen due during the period beginning with 1st July 2022 and ending with 31st December 2024. If an opinion was not given, but the maximum storage period could been increased if it had been, the opinion is treated as having been given at the appropriate time, provided it is given by 31st December 2024.
Regulation 5 addresses the situation where a medical opinion had not been given prior to 1st July 2022, resulting in the maximum storage period for gametes or embryos having ended under the 2009 Regulations. If such an opinion is given by 31st December 2024, the maximum storage period is treated as not having ended before 1st July 2022 for the purposes of the application of regulation 2 or 3 to this material. The “relevant period” for such material starts again on 1st July 2022.
A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.
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