HFEA to clarify guidance on exporting eggs, sperm and embryos for international surrogacy

We are pleased to report that the UK’s fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), is set to clarify its guidance on exporting eggs, sperm and embryos so that patients who wish to build families through international surrogacy can transport their genetic material to overseas clinics. (Updating note – the HFEA’s new guidance is now available here).

Why the HFEA is making this update

Although export for surrogacy has never been illegal, until now the process has been unclear. Many UK fertility clinics have been unsure about whether, within the existing legal rules, they could ship embryos and gametes abroad if a commercial surrogacy arrangement was planned and, if so, whether they could just go ahead and arrange the transfer or needed HFEA special permission.

The pandemic has thrown a spotlight on this, since intended parents who would have previously travelled to countries like the USA, Canada, Ukraine and Georgia for surrogacy have suddenly not been able to get there. For example, those planning US surrogacy have been prevented from travelling to the US in person by the presidential travel ban, leaving intended parents unable to create embryos in the US. They have instead looked to UK fertility clinics to help them ship their sperm or embryos to the US, but the confusion about what is allowed under the export rules has created a block in practice.

Previous HFEA guidance wasn’t legally correct

Previously, the HFEA advised UK fertility clinics to ask, before exporting gametes or embryos, whether surrogacy was planned and if so whether there was a commercial element. This suggested that export was prohibited or needed special HFEA permission if parents intended to pay a surrogate or a professional surrogacy agency. The most common international surrogacy destinations are the USA, Ukraine and Georgia, in which compensated and professionally-managed surrogacy is the norm.

However, following an approach from Brilliant Beginnings and NGA Law, and the HFEA subsequently seeking its own legal advice, Chief Executive Peter Thompson has confirmed in correspondence that the HFEA’s previous guidance was not in fact legally correct.

Although restrictions on professionally-arranged surrogacy apply to third parties in the UK, it is not illegal for UK intended parents to enter into compensated and professionally-arranged surrogacy arrangements in the UK or abroad or for fertility clinics to provide treatment. International surrogacy is now an established and accepted way of building a family, accounting for around half the surrogacy births to UK parents each year according to court statistics. Whether a commercial surrogacy arrangement is planned is therefore irrelevant to the issue of export.

UK fertility clinics can now export eggs, sperm and embryos

Going forward, this means that UK fertility clinics should be able to export eggs, sperm or embryos for patients wishing to pursue surrogacy abroad under the existing export rules, simply by liaising directly with the receiving clinic overseas and without requiring advance HFEA permission.

To use the more straightforward export process, the UK clinic must be satisfied that various conditions are met, including that the gamete providers consent to the export and that the overseas clinic meets appropriate quality standards. However, it has been clarified that there is no need for UK clinics to ask whether surrogacy is planned or whether the surrogacy involves a commercial element.

Although it will take some time for the HFEA to consider and review any  published guidance, Peter Thompson has written to NGA Law and Brilliant Beginnings confirming the current position regarding what is legally required under the current rules and has said he is happy for us to share this correspondence with any fertility clinics which require confirmation.

This is good news for patients wishing to export their eggs, sperm or embryos overseas for the purposes of international surrogacy, who can now be confident in their ability to do so immediately.

Find out more about US surrogacy during COVID-19

If you want to know more, why not watch our event recording where we talk about how you can pursue surrogacy in the US, even during COVID-19.