17. Storage of gametes and embryos

Version 5.0

Refer to principles 5, 6, 7, 8 and 10

Regulatory principles that apply to licensed centres

  • 5.

    provide prospective and current patients and donors with sufficient, accessible and up-to-date information in order to allow them to make informed decisions;

  • 6.

    ensure that patients and donors have provided all relevant consents, before any licensed activity is undertaken;

  • 7.

    conduct all licensed activities with proper skill and care and in an appropriate environment, in accordance with good clinical practice, to ensure optimum outcomes and minimum risk for patients, donors and offspring;

  • 8.

    ensure that all premises, equipment, processes and procedures used in the conduct of licensed activities are safe, secure and suitable for purpose;

  • 10.

    maintain proper and accurate records and information about all licensed activities;

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Human Fertilisation and Embryology (HFE) Act 1990 (as amended)

  • 1

    Meaning of "embryo", "gamete" and associated expressions

  • (4)

    In this Act (except in section 4A) -

    (a) references to eggs are to live human eggs, including cells of the female germ line at any stage of maturity, but (except in subsection (1)(b)) not including eggs that are in the process of fertilisation or are undergoing any other process capable of resulting in an embryo,

    (b) references to sperm are to live human sperm, including cells of the male germ line at any stage of maturity, and

    (c) references to gametes are to be read accordingly.

  • 3
    Prohibitions in connection with embryos
  • (1)

    No person shall bring about the creation of an embryo except in pursuance of a licence.

  • (1A)

    No person shall keep or use an embryo except -

    (a) in pursuance of a licence, or

    (b) in the case of-

    (i) the keeping, without storage, of an embryo intended for human application, or

    (ii) the processing, without storage, of such an embryo in pursuance of a third party agreement.

  • (3)

    A licence cannot authorise -

     

    …(c) keeping or using an embryo in any circumstances in which regulations prohibit its keeping or use

  • 4

    Prohibitions in connection with gametes

  • (1)

    No person shall -

    (a) store any gametes…

    except in pursuance of a licence.

  • (2)

    A licence cannot authorise storing or using gametes in any circumstances in which regulations prohibit their storage or use.

  • 14

    Conditions of storage licences

  • (1)

    The following shall be conditions of every licence authorising the storage of gametes, embryos or human admixed embryos

    (a) that gametes of a person shall be placed in storage only if -

    (i) received from that person,

    (ii) acquired in circumstances in which by virtue of paragraph 9 or 10 of Schedule 3 that person’s consent to the storage is not required, or

    (iii) acquired from a person to whom a licence or third party agreement applies,

    (aa) that an embryo taken from a woman shall be placed in storage only if -

    (i) received from that woman, or

    (ii) acquired from a person to whom a licence or third party agreement applies,

    (ab) that an embryo the creation of which has been brought about in vitro otherwise than in pursuance of that licence shall be placed in storage only if acquired from a person to whom a licence or third party agreement applies,

    (ac) that a human admixed embryo the creation of which has been brought about in vitro otherwise than in pursuance of that licence shall be placed in storage only if acquired from a person to whom a licence under paragraph 2 or 3 of Schedule 2 applies,

    (b) that gametes or embryos which are or have been stored shall not be supplied to a person otherwise than in the course of providing treatment services unless that person is a person to whom a licence applies,

    (ba) that human admixed embryos shall not be supplied to a person unless that person is a person to whom a licence applies,

    (c) that no gametes, embryos or human admixed embryo shall be kept in storage for longer than the statutory storage period and, if stored at the end of the period, should be allowed to perish, and

    (d) that such information as the Authority may specify in directions as to the persons whose consent is required under Schedule 3 to this Act, the terms of their consent and the circumstances of the storage and as to such other matters as the Authority may specify in directions shall be included in the records maintained in pursuance of the licence.

  • (2)

    No information should be removed from any records maintained in pursuance of such a licence before the expiry of such period as may be specified in directions for records of the class in question.

  • (3)

    The statutory storage period in respect of gametes is such period not exceeding ten years as the licence may specify.

  • (4)

    The statutory storage period in respect of embryos is such period not exceeding ten years as the licence may specify.

  • (4A)

    The statutory storage period in respect of human admixed embryos is such period not exceeding ten years as the licence may specify.

  • (5)

    Regulations may provide that subsection (3), (4) or (4A) above should have effect as if for ten years there were substituted -

    (a) such shorter period, or

    (b) in such circumstances as may be specified in the regulations, such longer period,

    as may be specified in the regulations.

  • 14A

    Conditions of licences: human application

  • (1)

    This section applies to -

    (a) every licence under paragraph 1 or 1A of Schedule 2,

    (b) every licence under paragraph 2 of that Schedule, so far as authorising storage of gametes or embryos intended for human application, and

    (c) every licence under paragraph 3 of that Schedule, so far as authorising activities in connection with the derivation from embryos of stem cells that are intended for human application.

  • (2)

    A licence to which this section applies may not authorise the storage, procurement, testing, processing or distribution of gametes or embryos unless it contains the conditions required by Schedule 3A.

  • (3)

    In relation to any gametes or embryos imported into the United Kingdom from an EEA state other than the United Kingdom or from Gibraltar, compliance with the requirements of the laws or other measures adopted in the relevant state or territory for the purpose of implementing the first, second and third Directives shall be taken to be compliance with the conditions required by Schedule 3A.

  • (4)

    Subsection (3) shall not apply to any licence conditions imposed by the Authority which amount to more stringent protective measures for the purposes of Article 4(2) of the first Directive.

  • 41

    Offences

  • (1)

    A person who -

    (b) does anything which, by virtue of section 3(3) of this Act, cannot be authorised by a licence,

    is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both. 

  • (2)

    A person who -

    (a) contravenes section 3(1) or (1A) of this Act, otherwise than by doing something which, by virtue of section 3(3) of this Act, cannot be authorised by a licence,…

    (b) keeps any gametes in contravention of section 4(1)(a) of this Act,…

    is guilty of an offence.

Schedule 3

  • Consent to use or storage of gametes, embryos or human admixed embryos etc

  • Storage of gametes and embryos

  • 8

    (1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent.

    (2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each relevant person in relation to the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents. 

Cases where consent not required for storage

  • 9

    (1) The gametes of a person (“C”) may be kept in storage without C’s consent if the following conditions are met.

    (2) Condition A is that the gametes are lawfully taken from or provided by C before C attains the age of 18 years.

    (3) Condition B is that, before the gametes are first stored, a registered medical practitioner certifies in writing that C is expected to undergo medical treatment and that in the opinion of the registered medical practitioner -

    (a) the treatment is likely to cause a significant impairment of C’s fertility, and

    (b) the storage of the gametes is in C’s best interests.

    (4) Condition C is that, at the time when the gametes are first stored, either -

    (a) C has not attained the age of 16 years and is not competent to deal with the issue of consent to the storage of the gametes, or

    (b) C has attained that age but, although not lacking capacity to consent to the storage of the gametes, is not competent to deal with the issue of consent to their storage.

    (5) Condition D is that C has not, since becoming competent to deal with the issue of consent to the storage of the gametes -

    (a) given consent under this Schedule to the storage of the gametes, or

    (b) given written notice to the person keeping the gametes that C does not wish them to continue to be stored.

    (6) In relation to Scotland, sub-paragraphs (1) to (5) are to be read with the following modifications -

    (a) for sub-paragraph (4), substitute -

    “(4) Condition C is that, at the time when the gametes are first stored, C does not have capacity (within the meaning of section 2(4) of the Age of Legal Capacity (Scotland) Act 1991) to consent to the storage of the gametes.”, and

    (b) in sub-paragraph (5), for “becoming competent to deal with the issue of consent to the storage of the gametes” substitute “acquiring such capacity”.

  • 10

    (1) The gametes of a person (“P”) may be kept in storage without P’s consent if the following conditions are met.

    (2) Condition A is that the gametes are lawfully taken from or provided by P after P has attained the age of 16 years.

    (3) Condition B is that, before the gametes are first stored, a registered medical practitioner certifies in writing that P is expected to undergo medical treatment and that in the opinion of the registered medical practitioner -

    (a) the treatment is likely to cause a significant impairment of P’s fertility,

    (b) P lacks capacity to consent to the storage of the gametes,

    (c) P is likely at some time to have that capacity, and

    (d) the storage of the gametes is in P’s best interests.

    (4) Condition C is that, at the time when the gametes are first stored, P lacks capacity to consent to their storage.

    (5) Condition D is that P has not subsequently, at a time when P has capacity to give a consent under this Schedule -

    (a) given consent to the storage of the gametes, or

    (b) given written notice to the person keeping the gametes that P does not wish them to continue to be stored.

    (6) In relation to Scotland -

    (a) references in sub-paragraphs (3) and (4) to P lacking capacity to consent are to be read as references to P being incapable, within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000, of giving such consent,

    (b) the references in sub-paragraphs (3) and (5) to P having capacity are to be read as references to P not being so incapable, and

    (c) that Act applies to the storage of gametes under this paragraph to the extent specified in section 84A of that Act.

  • 11

    A person’s gametes must not be kept in storage by virtue of paragraph 9 or 10 after the person’s death

Licence conditions

  • T50

    Prior to the processing of patient gametes or embryos, intended for use in treatment or storage,
    the centre must:

    a. Carry out the following biological tests to assess the risk of cross contamination

    • HIV 1 and 2: Anti-HIV – 1, 2
    • Hepatitis B: HBsAg and Anti-HBc
    • Hepatitis C: Anti-HCV-Ab

    b. Devise a system of storage which clearly separates:

    • quarantined/unscreened gametes and embryos, 
    • gametes and embryos which have tested negative, and
    • gametes and embryos which have tested positive.

    c.      Perform HTLV- 1 antibody testing for patients living in or originating from high incidence areas or with sexual partners originating from those areas or where the donor’s parents originate from those areas

    d.     In certain circumstances, carry out additional testing depending    on the patient’s travel and exposure history and the characteristics of the tissue or cells donated (eg, Rh D, Malaria, CMV, T.cruzi)

    Positive results will not necessarily prevent the use of the partners’ gametes.

  • T51

    The centre must ensure that the laboratory tests required by licence condition T50 meet the following requirements, namely:

    a. the test must be carried out by a qualified laboratory, which has suitable accreditation (for example by CPA (UK) Ltd or another body accrediting to an equivalent standard), using CE marked testing kits where appropriate. The type of test used must be validated for the purpose in accordance with current scientific knowledge, and

    b. blood samples must be obtained within a timeframe specified by the Authority

  • T75

    Centres must ensure that all storage processes are carried out under controlled conditions.

  • T76

    Gametes of a person must be placed in storage only if -

    a. received from that person,

    b. acquired in circumstances in which by virtue of paragraph 9 and 10 of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (as amended) that person’s consent to the storage is not required, or

    c. acquired from a person to whom a licence or third party agreement applies.

  • T77

    Embryos taken from a woman must be placed in storage only if -

    a. received from that woman, or

    b. acquired from a person to whom a licence or third party agreement applies.

  • T78

    Embryos which have been created in vitro otherwise than in pursuance of this licence must be placed in storage only if acquired from a person to whom a licence or third party agreement applies.

  • T79
    No gametes or embryos must be kept in storage for longer than the statutory storage period and, if stored at the end of the period, must be allowed to perish.
  • T80

    The statutory storage period in respect of gametes is such period not exceeding ten years as the licence may specify.

  • T81

    The statutory storage period in respect of embryos is such period not exceeding ten years as the licence may specify.

  • T82

    Regulations may provide that licence conditions T80 and T81 must have effect as if for ten years there were substituted -

    a. such shorter period, or

    b. in such circumstances as may be specified in the relevant Regulations, such longer period, as may be specified in the relevant Regulations.

  • T83

    Gametes or embryos which are or have been stored must not be supplied to a person otherwise than in the course of providing treatment services, unless that person is a person to whom a licence applies.

  • T85

    A documented risk assessment must be undertaken to determine the fate of all stored gametes and embryos following the introduction of any new donor/patient selection or testing criterion or any significantly modified processing step that enhances safety or quality.

Directions

Regulations

The Human Fertilisation and Embryology (Statutory Storage Period) Regulations 1991

The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009

Copies of this legislation can be found at the OPSI website.

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Facilities and documented procedures

  • 17.1

    The centre should establish documented procedures to ensure that all storage and handling of gametes and embryos comply with licence conditions, regulations, and relevant patient and donor consent.

  • 17.2

    The centre should ensure that the storage facilities for gametes and embryos:

    a) are dedicated for the purpose, and adequate for the volume and types of activities

    b) are designed to avoid proximity to ionising radiation (radioactive material), any known potential source of infection, or chemical or atmospheric contamination, and

    c) have a storage-location system that minimises the amount of handling required to retrieve gametes and embryos.

  • 17.3

    The centre should also have emergency procedures to deal with damage to storage vessels, failure of storage conditions or both.

  • 17.4

    The centre’s documented procedures should also ensure that:

    a) gametes and embryos are stored under controlled conditions that are validated and monitored

    b) gametes and embryos are packaged for storage in a way that:

    i) prevents any adverse effects on the material

    ii) minimises the risk of contamination

    c) records are kept indicating every occasion when gametes and embryos are handled during storage and release, and by whom

    d) records are kept indicating that gametes and embryos meet requirements for safety and quality before release, and

    e) risk assessments (approved by the person responsible) are done to determine the fate of all stored material whenever any of the following is introduced:

    i) a new donor selection criterion

    ii) a new criterion for testing donors, patients’ partners or patients

    iii) a new processing step to enhance safety, quality or both

    iv) a new procedure for appropriate disposal of gametes and embryos.

Safety of equipment used to store cryopreserved gametes and embryos

  • 17.5

    Centres should store gametes and embryos in a designated area. Access to this area should be limited to staff authorised under the terms of the centre’s licence. Cryopreservation dewars should be fitted with local alarms and be linked to an auto-dial or similar facility, (eg, a link to a fire alarm board) to alert staff to non-conformities outside normal working hours.

  • 17.6

    The centre should have adequate staff and funding for an ‘on-call’ system for responding to alarms out of hours, and adequate spare storage capacity to enable transfer of samples if a dewar fails.

  • 17.7

    A centre storing gametes and/or embryos for patients whose future fertility may be impaired by a medical condition or procedure should divide individual patients’ samples into separate storage vessels, in case of dewar failure.

Screening and storage of samples to prevent cross-contamination

17AInterpretation of mandatory requirements

The law requires centres to obtain blood samples for HIV 1 and HIV 2, hepatitis B and hepatitis C screening from patients and their partners within three months before they first provide their gametes for use in treatment. Where the same person provides gametes for further treatment of their partner, the centre must obtain new blood samples within two years of the previous sampling. Patients who have screening tests at one licensed clinic and then move to another do not have to have repeat screening tests if within these timescales. However, individual clinics must decide whether the appropriate screening has taken place in the required timeframe. These screening requirements apply to individuals who provide gametes, or embryos created with their gametes, that will be processed or stored.

Where treatment involves the use of gametes, or embryos created with gametes, from two people who are not in an intimate physical relationship:

a) the person providing the gametes to the woman being treated must be screened according to licence condition T52 on donor screening

b) the centre, in discussion with the patient, should consider the merit of additional donor screening in line with guidance by professional bodies.

  • 17.8

    The centre should ensure that no gametes or embryos are placed in storage unless the people who provided the gametes have been screened in accordance with current recommended professional guidelines.

  • 17.9

    Centres should:

    a) assess the risks of cross-contamination during the quarantine period

    b) put procedures in place to minimise these risks, and

    c) document the rationale for the chosen quarantine procedures.

Storing ovarian and testicular tissue

17BInterpretation of mandatory requirements

Ovarian and testicular tissue, as cells of the germ line, fall within the definition of gamete in the Human Fertilisation and Embryology Act 1990 (as amended) and so are subject to the same storage requirements as sperm and eggs.

HFEA-licensed clinics currently storing ovarian or testicular tissue can continue to do so without a licence from the Human Tissue Authority (HTA) until the tissue is to be used. If a patient’s own tissue is to be transplanted (known as autologous transplant), it must be transferred at the time of use to an HTA-licensed facility for processing and/or distribution to the transplant facility. Details of HTA-licensed facilities are on the HTA website.

An HTA licence is not needed to store ovarian or testicular tissue intended for fertility treatment (eg, in vitro maturation of gametes). HFEA centres licensed to store gametes can store, process and use ovarian or testicular tissue to extract gametes for patients’ own use in licensed fertility treatment, subject to the same conditions that apply to the use of sperm and eggs.

Information for those seeking storage of gametes or embryos

  • 17.10

    If the treatment involves the creation of embryos in vitro, the centre should give people seeking treatment information about the availability of facilities for freezing embryos, and about the implications of storing and then using stored embryos.

  • 17.11

    If there is an intention to store gametes or embryos, or where this possibility arises during treatment, in addition to relevant information about treatment and donation, the centre should give those providing the gametes or embryos relevant information about:

    a) the possible deterioration or loss of viability of gametes or embryos as a result of storage, and the potential risk of cross-contamination between samples

    b) regulations for statutory storage periods for gametes and embryos, and regulations for extending storage periods including, in the case of embryos, the requirement for both gamete providers to consent to any extension of storage

    c) the likelihood of a live birth resulting from previously cryopreserved embryos or gametes, and

    d) screening tests to be done, the cost of these, the reason for them and the implications of the tests for the gamete providers.

  • 17.12

    The centre should provide specific information tailored to the needs and circumstances of oncology patients and other patients requiring long-term storage. Where relevant, this should include information appropriate to minors.

  • 17.13

    The centre should ensure that, before someone consents to gametes or embryos being stored, they are told:

    a) the options available if a person providing gametes or resulting embryos dies or becomes mentally incapacitated

    b) that it may be possible to register a deceased partner as the parent of a child resulting from treatment, and the conditions for doing so, and

    c) that it is unlawful to store embryos and gametes beyond the period of consent, the centre having a legal obligation to dispose of them once consent has expired.

Treatment using cryopreserved eggs or embryos

  • 17.14

    The centre should ensure that the following sets of eggs or embryos are only transferred during the same treatment cycle in exceptional circumstances, with an upper limit of 2% of all cases:

    (a) fresh eggs and eggs that have been cryopreserved, or

    (b) embryos that have been created using cryopreserved eggs, and embryos created using fresh eggs, or

    (c) cryopreserved embryos that have been created using cryopreserved eggs and cryopreserved embryos that have been created using fresh eggs.

    The circumstances justifying such a transfer should be specified in the patient’s notes.

     

Consent to storage and cases where consent is not required for storage

17CInterpretation of mandatory requirements

The law requires the centre to obtain written informed consent from a person before it stores their gametes or embryos created with their gametes.

The law allows gametes to be stored without consent if the conditions met in paragraph 9 or 10, and 11 of Schedule 3 of the HFE Act 1990 (as amended) are met.

Gametes stored following the application of these paragraphs may be used only if the person from whom they were collected gives written effective consent to their use (and has sufficient capacity and competence to do so).

If sperm was in storage on 1 August 1991, storage may legally continue without the written consent of the individual who provided the sperm.

The 1991 Human Fertilisation and Embryology (Statutory Storage Period) Regulations allowed the 10-year statutory storage period for such gametes to be extended up to the gamete provider’s 55th birthday without written consent, subject to compliance with certain conditions. If those conditions were not met, the gametes should have been allowed to perish on 31 July 2001, as the statutory storage period for gametes first placed into storage before the Act came into force is deemed to have started on 1 August 1991.

The 2009 Human Fertilisation and Embryology (Statutory Storage Period) Regulations provide a mechanism for successive 10-year extensions of storage, up to a maximum of 55 years. If gametes were being stored for an extended period (ie, under the 1991 Regulations) and that storage period had not expired by 1 October 2009, then the gametes may remain in storage for the balance of the period (as permitted by the schedule to the 1991 Regulations) or for the period stated in the 2009 Regulations.

For guidance about steps to take when consent is not required, see guidance note 5 – Consent to treatment, storage, donation, and disclosure of information.

Extension of storage

  • 17.15

    Before the centre obtains consent from anyone wishing to store gametes or embryos for more than 10 years, it should ensure that the conditions for extended storage in the relevant regulations are satisfied. 

Disputes involving the withdrawal of consent to storage

Mandatory requirements

Human Fertilisation and Embryology (HFE) Act 1990 (as amended)

Schedule 3 Consent to use or storage of gametes, embryos or human admixed embryos etc

4A (1) This paragraph applies where -

(a) a permitted embryo, the creation of which was brought about in vitro, is in storage,

(b) it was created for use in providing treatment services,

(c) before it is used in providing treatment services, one of the persons whose gametes were used to bring about its creation ("P”) gives the person keeping the embryo notice withdrawing P’s consent to the storage of the embryo, and

(d) the embryo was not to be used in providing treatment services to P alone.

(2) The person keeping the embryo must as soon as possible take all reasonable steps to notify each interested person in relation to the embryo of P’s withdrawal of consent.

(3) For the purposes of sub-paragraph (2), a person is an interested person in relation to an embryo if the embryo was to be used in providing treatment services to that person.

(4) Storage of the embryo remains lawful until-

(a) the end of the period of 12 months beginning with the day on which the notice mentioned in sub-paragraph (1) was received from P, or

(b) if, before the end of that period, the person keeping the embryo receives a notice from each person notified of P’s withdrawal under sub-paragraph (2) stating that the person consents to the destruction of the embryo, the time at which the last of those notices is received.

(5) The reference in sub-paragraph (1)(a) to a permitted embryo is to be read in accordance with section 3ZA.

17DInterpretation of mandatory requirements

If one of the gamete providers withdraws consent to the continued storage of embryos intended for treatment (created from their gametes), the law requires the centre to take all reasonable steps to notify the intended recipient(s).

The law allows embryos to be stored for 12 months from the date that the centre receives written withdrawal of consent, or less if the centre receives written signed consent from all intended recipients for the embryos to be destroyed.  This 12-month ‘cooling off’ period must not extend beyond the end of the period for which valid consent exists.

For guidance about the withdrawal of consent see guidance note 5 – Consent to treatment, storage, donation, and disclosure of information.

Storage review

  • 17.16

    The centre should establish documented procedures to ensure that:

    a) reviews of stored gametes and embryos are done at least once every two years to:

    i) reconcile the centre’s records with material in storage

    ii) review the purpose and duration of storage, and

    iii) identify any action needed

    b) if the number of families created using gametes (or embryos created using donated gametes) from a particular donor has reached 10, those gametes or embryos are not used or distributed for use in further treatment.

  • 17.17
    The centre should operate a bring-forward system in order to ensure sufficient advance notice of the end of the statutory storage period (or such shorter period as specified by a person who provided the gametes) for gametes or embryos in storage.

The end of storage

17EInterpretation of mandatory requirements

No centre may keep embryos or store gametes after the expiry of the legal maximum storage period, or the period specified when the embryos or gametes were stored if shorter.  Storing embryos or gametes beyond the relevant period is a criminal offence, punishable by a prison sentence, fine or both. 

  • 17.18
    The centre should make efforts to stay in contact with patients who have gametes or embryos in storage for their own treatment, and with any woman to be treated with stored gametes or embryos (where she is not a gamete provider.) The centre should also explain to gamete providers and current patients the importance of informing the centre of any change in their contact details.
  • 17.19
    Centres should inform patients who have gametes or embryos in storage for their own treatment when the end of the permitted storage period is approaching. Patients should be provided with information about the options available to them as the end of their permitted storage period approaches. They should be given enough notice to enable them to consider those options, and to access appropriate advice. Options could include the donation of the gametes or embryos for research or treatment.

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Code of Practice edition: 8