Surrogacy reform recommendations and egg freezing

There have long been calls for reform to surrogacy law – and the Law Commissions’ recent project represented a significant step towards meaningful change. However, the regulation of surrogacy cannot be considered in isolation and inevitably raises questions about other reproductive technologies. A symposium, funded by Broadly Conceived, explored the broader implications of the Law Commissions’ recommendations relating to surrogacy. In this blog series, each presenter from the symposium reflects on the impact of these recommendations on current (and future) reproductive practices.

Natalie Richardson, University of Kent

Key words: egg freezing, surrogacy, law reform, regulation.

Image credit: Google Gemini

Introduction

The Law Commissions’ 2023 Report on surrogacy included draft proposals for reform, including a new ‘pathway to parenthood’ for intended parents and plans to bring surrogacy organisations and advertising within the remit of the Human Fertilisation and Embryology Authority (HFEA) for the first time.

Surrogacy has often dominated headlines and prompted calls for reform, being singled out for specific additional regulation when compared with other reproductive technologies, due to the multiple parties involved and complexities arising from the allocation of legal parenthood. However, while the Law Commissions’ Report was only intended to implement changes to the law on surrogacy, their recommendations could have implications for other reproductive technologies.

The connection between proposed surrogacy reforms and egg freezing may at first seem less obvious than other technologies. Egg freezing is distinct from most other assisted reproductive technologies because it only involves one person, and the intended outcome of treatment is to maintain the possibility of genetic parenthood in the future, rather than to aid conception.

This post will explore two areas of tension between the way in which egg freezing is regulated and the recommended surrogacy reforms: age limits and the HFEA’s role in overseeing non-profit regulated surrogacy organisations (RSOs), including advertising. To varying degrees, these issues also apply to other forms of assisted reproduction, including IVF, raising questions about how we should understand the role of the regulator and standardise regulation across reproductive practices.

Egg freezing

The latest HFEA figures show that egg freezing has continued to grow: the total number of freezing cycles in the UK increased from just over 2,500 in 2019 to 4,688 in 2023.

While the HFEA does not categorise these figures by reason for freezing, based on previous data, the regulator estimates that around 16% of the 2023 cycles were for medical reasons (e.g. prior to undergoing cancer treatment). Therefore, the most significant growth has been among those freezing for non-medical reasons, often termed ‘social’ or ‘elective’ egg freezing, which is not funded by the NHS. This can include a complex combination of reasons, including medical factors short of complete infertility. However, UK-based empirical work from the 2010s indicated that lack of a partner was a significant driving factor at the time, in contrast to early concerns that women were freezing for career reasons.

As with surrogacy, the technology is not without its controversies, including concerns about who stands to benefit from expansion in of egg freezing (including women, non-committal men, and clinics which stand to profit). Furthermore, there is much uncertainty about outcomes as, so far, few women have returned to use their frozen eggs and the main benefits of treatment for many include relieving anxiety about dating or fertility, and some of the biggest risks can be financial. People considering egg freezing must also carefully balance their decision about when to freeze as egg quality declines with age, but young women with no medical reasons for freezing will be less likely to rely on the eggs in future. In 2023, the average age of people freezing their eggs for any reason was 35, with the biggest increases from 2022 to 2023 being among those aged 30-34 (67%) and 35-37 (53%).  

However, despite these specific challenges, egg freezing is covered by the same regulation as other forms of assisted reproduction, including informed consent requirements, rather than singled out for separate regulation.

Surrogacy reforms: areas of tension  

Age of access

In the Report, the Law Commissions recommend imposing a lower age limit on surrogates, stating that the surrogate should be at least 21 years old when entering the surrogacy arrangement. At present, no legal age limit is placed on surrogates in the UK, although the main surrogacy organisations require prospective surrogates to be 21 years or older. The Law Commissions defend their recommendation, aligned with professional practice, as a means to reduce the risk of pressure, and to ensure adequate physical and emotional maturity of the surrogate.

The HFEA does not set age limits for access to IVF or fertility preservation, leaving this to clinical discretion due to the complex range of factors beyond age which influence conception and pregnancy outcomes. Many clinics will have their own age limit policies. For example, it is  unlikely that a clinic will treat someone for egg freezing under 18 for non-medical reasons, and Integrated Care Boards set their own age restrictions for NHS access. While the Law Commissions decided against recommending an upper age limit for surrogates, their recommendation of a minimum age of 21 marks a departure from this wider approach. Despite articulating a rationale for the lower age limit, it is notable that it is out of line with other forms of assistance in reproduction – for example, the minimum age for donating eggs is 18 years old.

As mentioned above, one challenge in the provision of egg freezing for non-medical reasons is balancing the decision about when to freeze, considering that eggs decline with age but also that freezing at a young age means there is a higher likelihood that the patient will conceive naturally and never return to use them. Therefore, the justifications for the lower age limit of 21 recommended for surrogacy could arguably be applied more broadly. If the lower age limit is to only be applied to surrogacy, and not other forms of assisted reproduction, it should be carefully justified in this broader context. 

HFEA role as a regulator

The Law Commissions recommended that surrogacy arrangements under their new pathway to parenthood should be ‘overseen and supported’ by RSOs, which would be regulated by the HFEA. The RSOs would have to operate on a non-profit-making basis, ensuring their decisions are not commercially driven. Part of the HFEA’s oversight would include how RSOs advertise for their services. The suggestion that RSOs be brought under the purview of the existing fertility regulator raises some wider questions for the sector.

The recommendation that these organisations must be non-profit is in line with the existing approach to surrogacy in England and Wales, rejecting the commercial model of surrogacy seen in other countries. However, it is in stark contrast to the increasingly commercialised wider fertility sector in the UK. For example, the majority of IVF cycles in the UK are now privately funded and, as mentioned above, egg freezing has become one of the fastest growing fertility treatments in the UK, mostly driven by privately-funded cycles. Therefore, it is notable that the Law Commissions drew a distinction in the case of surrogacy, recommending that RSOs operate on a not-for-profit basis, while in many cases the treatment itself will be provided via clinics which operate on a commercial basis.

Second, protecting patients as both consumers and patients is one of the key challenges facing the HFEA today in the increasingly commercialised fertility sector.  One key challenge is the regulator’s limited powers over advertising by clinics. The HFEA does not have direct authority to regulate advertising, but has worked closely with other organisations, including the Advertising Standards Agency (ASA) and more recently with the Competition and Markets Authority (CMA) to introduce guidance on clinic advertising. A study conducted before the 2021 CMA guidance was introduced found that many clinics did not adhere to the guidance set by the ASA and HFEA in their online advertising of egg freezing, and more recently a BBC investigation in 2024 reported similar concerns. This has been a particular area of concern in elective egg freezing as patients are not referred to clinics for treatment due to illness or infertility, suggesting their first interaction with information about freezing is often online. Therefore, it is notable that the Law Commissions recommended RSO advertising be added to the HFEA’s remit when regulation of advertising has already proven to be a challenge in the context of egg freezing.

Conclusion

These areas of tension raise questions about whether, and why, surrogacy should be distinguished from other assisted reproductive technologies, including egg freezing. The expanded role of the HFEA as regulator under the recommendations need further interrogation, particularly given its existing challenges and limitations in dealing with aspects of egg freezing.

If the recommendations are implemented and become law, it will be important to identify the interactions between these distinct, but connected, technologies to ensure a cohesive and consistent approach to regulation of the sector.