Pressing pause on parenthood – when relationship breakdown affects consent to storage and use of embryos

8 November 2018

Our first ‘pressing pause on parenthood’ blog discussed the reported increase in women looking at preserving their fertility using methods such as egg freezing.  As part of our blog series looking at fertility and alternative ways of conceiving, we highlight below some further key issues which we encourage prospective parents to discuss with their clinic and families before making hugely important decisions about having a family.

As highlighted in our first blog, many women are choosing to freeze their eggs in the hope of preserving their chances of having a family later in life.  In a number of cases, instead of egg freezing, women are choosing to freeze embryos which have been created with their partners’ sperm.  There are many reasons why couples do this, such as creation for use in IVF treatment, for later use when they are ready for a family or due to the woman having health issues, such as cancer, which requires treatment that could impact on their ability to have children naturally afterwards.

While embryo freezing may be the best option for a couple medically, we remain concerned that fertility clinics do not always go through all of the options available nor give full advice about the consequences of embryo rather than egg or sperm freezing.  It may be that the relatively low rates of success for a frozen egg resulting in a healthy birth is one of the reasons why women opt for embryo freezing (which reportedly has a much higher rate of success for live births), but it is important that women are also made aware of the legal position in respect of embryos made up of both their and their partner’s genetic material. Couples may want to ask their clinic about the full options for storing eggs, sperm and embryos. 

When an embryo is created using a woman’s egg and her partner’s sperm, the consent of both parties is required for its on-going storage and use.  Consequently, the woman or her partner can vary or withdraw consent at any time before the embryos are used for fertility treatment. If either partner withdraws consent, there will be a cooling-off period to allow the couple to decide what should happen to the embryos and, after this time, if either partner does not want the embryos to be used, they will need to be removed from storage (and cannot be used in treatment) and allowed to perish. Further guidance can be found on the Human Fertilisation and Embryology Authority’s website.

Once an embryo has been implanted and a woman becomes pregnant, any decisions about the pregnancy are hers alone. 

The above is extremely important to know before making any decisions about preserving your fertility or ability to have a family.  For couples going through IVF or cancer treatment for example, there can be a huge amount of strain on a relationship and it is not uncommon for partners to decide, after such a stressful period, to separate.  In which case, if the male partner withdraws his consent to the embryos’ continued existence, a woman may be left at that stage, older and/or post treatment, without the ability to retrieve and freeze good quality eggs and therefore without the ability to carry a child of her own. 

This is what happened in the case of Natalie Evans who, after exhausting the routes available to her in the English legal system, made an application to the European courts as a last chance to save the embryos she and her former partner (who had since withdrawn his consent to the embryos being stored and used) had created.  Ms Evans was also unsuccessful in the European courts and the embryos were destroyed.  Commentary at the time included sympathy for both Ms Evans and her former partner and it was said that having a child is a life-long undertaking to which both partners should be fully committed.  The decision was no doubt a difficult one and we have met clients subsequently who have been in a similar situation.  Unfortunately, their fertility clinics did not explore with them the unhappy possibility that the relationship may not survive, the need for consent of both parties to their embryos’ continued existence and use or the other options (such as egg freezing) which may be considered.

Every person is different and what may be right for one couple will not always be right for another but while there are so many potential issues at play, it is extremely important that couples are given the full picture when making significant decisions about their fertility and future.

Further information

Should you have any questions relating to fertility related issues, please contact a member of our family team.

You may also be interested in reading more about international surrogacy and the position in the UK HERE. Further information can also be found on our Frequently Asked Questions page about surrogacy and our previous blogs.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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