The volume of people using IVF treatments and fertility clinics in order to conceive is rising. But what happens with frozen embryos when the relationship breaks down? The law in this area does not regard embryos as ‘matrimonial’ property, so the courts cannot make orders about them using divorce laws. This article discusses the law in this area.
What does the law say?
The Human Fertilisation and Embryology Act (HFEA) sets out the law on continued storage of embryos and their use. Fundamentally, it states that embryos can only be used with the consent of both parties. So, if one person decides they no longer want their embryos stored, or they don’t want the other party using them, they are entitled to change their mind. Once consent is withdrawn, there is a 12-month ‘cooling off’ period.
What is the 12-month ‘cooling off’ period regarding frozen embryos?
During the ‘cooling off’ period, the consent of both parties will need to be obtained for continued storage and any use of the embryos in fertility treatment. Once the cooling off period has ended, if both parties do not give their consent for continued storage, the embryos will be destroyed.
Can the court intervene if one party wants the embryos preserved?
The court in England and Wales has no power to intervene if one party wants the embryos to be preserved. In cases where it has been forced to determine one party’s rights to become a parent against the other’s objection and autonomy not to, the fundamental principle of the right to a family life does not override withdrawal of consent. Even if it could be the party’s last chance of becoming a biological parent.
What happens if my ex forges my consent?
There is a high-profile case from 2017 dealing with this issue. Here, the ex-partner of a man forged his signature and became pregnant using their frozen embryos after they had separated.
The man decided to sue the IVF clinic, but lost his case in the high court and also lost, on appeal, the issue of damages too. Although the judge agreed the man’s signature had been forged and the IVF clinic had breached its contractual obligations, he could not recover any damages.
To his credit, and despite the manner in which the child was conceived, the man accepted his shared responsibility towards the child.
I’m happy for my ex to use our frozen embryos, but I don’t want to be the legal parent. Can I do anything?
Whilst it is possible to ‘donate’ embryos, the law does not allow you to donate them to someone you created them with. If you provided sperm and agree to your ex using any embryos in future IVF treatment, the law will treat you as the legal father unless your ex is married or in a civil partnership with someone else when fertility treatment takes place. This may lead to a child support obligation.
What if neither party informs the IVF clinic about the divorce or separation?
Fertility clinics in the UK are legally required to contact their patients and gamete providers at least once every 10 years to ensure the consent they gave for storage is still valid. They must also confirm the consent is valid before any treatment begins.
Can my ex export stored embryos to a clinic outside the UK?
The law requires licensed clinics to obtain the consent of the gamete provider to export the embryos. It is important to note that not all HFEA licensed clinics have export licenses, therefore, sometimes, even where it is permissible to export embryos, you may initially have to transfer the embryos to a clinic which has a licence to export them.
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