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Article by Natalie Sutherland, Partner, Burgess Mee Family Law
Throw infertility into the mix and it can be overwhelming. In this article, I will provide guidance on navigating the various options and challenges.
While women’s fertility declines after the age of 36, not everyone is ready to start a family during those early fertile years, especially when the focus is on career building. Indeed, official statistics show that more than half of women who give birth are over 31.
Egg freezing enables a woman to harvest her eggs at the optimum time, for use when she ready to be a mother. That optimum time is when she is in her early to mid-twenties. However, if freezing for social reasons (i.e., not for medical reasons such as preserving fertility ahead of cancer treatment) the maximum storage period is currently 10 years. Freezing eggs at 25, therefore, means that they will either need to be used by the age of 35 or moved abroad where the storage limits are different.
The government recently announced that the storage limit for social gamete freezing will be brought in line with medical gamete freezing, i.e. up to 55 years – although the law has not yet come into effect. This means that if eggs are frozen now, it is likely that the law will be changed to enable you to store beyond 10 years. However, if you already have eggs in storage and are reaching the 10-year limit, you should seek immediate legal advice. You may need to issue a court application for an injunction to prevent the clinic from destroying your stored eggs, as for the clinic to store the eggs beyond the statutory limit would be a criminal offence.
Whilst egg freezing can provide some protection against fertility issues, it is not a cast-iron insurance policy. There are many factors to consider when undergoing IVF later in life, even with an egg that is 10 years younger than you. The message, therefore, is do not leave it too late.
If freezing embryos with a partner, perhaps to have a sibling after a fresh embryo transfer, remember that you have joined the gametes of two people, both of whom must consent to the storage and use of that embryo. Withdrawing consent is possible until the embryo has been implanted. If you split from your partner, you may not be able to use the embryo you created together if he withdraws his consent. To guard against this risk, you should freeze your eggs as well as embryos.
Consider also what you or your partner would want to happen to any frozen embryo in the event of death. Clear and unambiguous consent is vital. Ensure that the relevant forms are correctly completed at the clinic and, for extra safety, record your intentions in a will.
Trying for a baby is a private issue and there is no obligation to tell an employer until 15 weeks before the baby is due. But what about navigating work commitments whilst trying to get pregnant through assisted reproductive means, involving as it does multiple doctor appointments during the working day, injections and medication?
Unfortunately, infertility is still taboo, mired in shame and secrecy – yet one in eight couples experience infertility issues and a quarter of pregnancies end in miscarriage. Whilst there are statutory employment protections for women who are pregnant and have had a baby, there are no such equivalent protections relating to IVF treatment or if you suffer a miscarriage or baby loss before 24 weeks’ gestation.
Thankfully, the conversation around infertility is changing. Companies increasingly understand that to attract and retain top female talent, they must do more to help with family building. Having a successful career and being a mother are not mutually exclusive.
Ask your HR Department if your company has a bespoke fertility policy or a miscarriage and baby loss policy. Many big companies now create these as standard as well as providing significant fertility benefits, such as egg freezing and IVF treatment, saving an employee thousands of pounds.
If your company does not have these policies, benefits or positions, perhaps question why not? The more people speak up about fertility issues, the more mainstream these policies and benefits will become.
You may reach a point in your fertility journey where you require third-party assistance, such as an egg or sperm donor or surrogate.
Becoming a mother through surrogacy entitles you to the same maternity benefits as if you had you carried the child. Legal parenthood, however, is not straightforward as the surrogate will be the legal mother and you will have to undergo a court process to transfer legal parenthood to the intended parents via a Parental Order. It is essential that you seek early legal advice about this aspect as there are specific criteria you must meet before being eligible to apply.
Using a donor can evoke a myriad of emotions, as the child will not be genetically linked to at least one of you. Again, there will be many decisions to make, such as whether you use a known or an ‘anonymous’ donor.
Donor conception is no longer fully anonymous in the UK. From age 18 any donor- conceived adult is entitled to receive identifying information about their donor. That said, it is not mandatory for parents to tell their children that they are donor conceived.
Platonic co-parenting – where two people not in a romantic relationship raise a child together – is yet another way to create a family. Conception can be achieved through natural conception or artificial conception at home or through a fertility clinic. This route to parenthood requires careful planning and, ideally, a co-parenting agreement. Legal advice should be taken before conception to ensure that both parties’ intentions are aligned, you understand who will be the legal parents and to avoid any potential conflict that may lead to court applications.
However you create your family, there will be medical as well as legal issues to consider. It is always prudent to take bespoke legal advice about your individual situation so that you have all the information needed to make the best decision for you.
Natalie Sutherland is a Partner at Burgess Mee Family Law specialising in fertility law and surrogacy. Natalie is passionate about opening up the conversation around fertility issues in the workplace and together with Somaya Ouazzani, CEO and founder of recruitment partner search firm Mimoza Fleur, held a panel event in December 2021 called In/Fertility in the City, where six highly successful women shared their infertility stories and how it impacted on their professional lives in order to normalise the conversation. More events are planned, so do check here.
