Legal Rights to Embryos: What happens when relationships end or consent changes?
Embryo freezing is a type of cryopreservation; when fertility treatments such as in vitro fertilisation (IVF), intracytoplasmic sperm injection (ICS) or egg donation occur, more sufficiently good quality embryos may be generated than those that are immediately required. These excess embryos can be frozen and stored for future use, providing a further possibility of pregnancy without the need to repeat the process again. Alternatively, couples who may struggle to have a viable pregnancy later in their relationship – or indeed single women who wish to engage in fertility treatments now, for the possibility of biological children later in life – may decide to freeze embryos early, hoping to use them when the time is right.
Egg and sperm donation – who has what legal rights?
Egg donation is where a woman donates her eggs to someone else’s fertility treatment, where that woman cannot use her own eggs, chooses not to use her own eggs (due to concerns of passing on an inherited condition or disease, for example), or where a same-sex male couple wish to engage in fertility treatment.
Where a male partner is unable to produce any sperm (or the sperm that they can produce is not of a high enough quantity or quality) a sperm donor can be used in fertility treatment.
The woman who gives birth to a child is always considered the legal mother of that child, regardless of whether egg donation was used or not. The woman whose eggs were donated has no parental legal rights or responsibilities once that child is born. If the donated egg is fertilised and used immediately, the legal rights and responsibilities are relatively straightforward.
With sperm donation, if the donor donates through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic (which are located throughout Northern Ireland and the UK) the donor will not be the legal parent, have any legal rights or responsibilities in relation to the child, and will not be named on the birth certificate. (Though, if an unlicensed clinic is used to donate sperm, the donor will be considered the legal parent of any child born from that donation.)
However, if an egg is fertilised and frozen as an embryo, and donated gametes have been used, the situation with regards to legal rights becomes significantly more complex. In Northern Ireland (and throughout the UK) the principle of consent is the cornerstone of fertility law. Frozen embryos may only be stored or used with the consent of the egg and sperm providers (known as the ‘gamete providers’). Where an egg/sperm has been donated, consent must be provided in writing and signed by the donor(s) to confirm that they consent to the embryo being frozen and stored. This consent can be varied or withdrawn (also required to be in writing and signed) at any time prior to the embryo being placed in the body of the woman.
In the event that consent from the gamete provider(s) is withdrawn in relation to a frozen embryo, all parties involved must be notified that consent has been revoked – this includes the other gamete provider(s) and the woman who was the intended recipient of the embryo. If all parties are content with the donor’s decision, then the embryo can be destroyed. However, if even one party does not agree to the destruction, then the embryo must be stored for a period of 12 months, allowing a ‘cooling-off period’ for the gamete provider(s) to change their mind. If after the 12 months consent is not re-given, then the embryo must be destroyed. Once the embryo is placed in the woman, the gamete provider(s) have no legal right to object, and their consent cannot be waived or revoked beyond that point.
Frozen Embryos – what happens after divorce/separation?
In instances where a couple have frozen embryos and the relationship breaks down, the legal position depends on the specific circumstances in that case.
For example, if a couple chooses to pursue fertility treatment and they use a sperm donor, then the parties who need to consent (and who, therefore can revoke consent) are the gamete provider (i.e. the sperm donor) and the female partner (i.e. the egg provider). If the relationship breaks down, then the other partner (i.e. the partner who has not provided any gametes) has no ability to claim any legal rights or ownership over that frozen embryo.
Where an egg donor has been used but the male partner (or one of the male partners, in the case of a male same-sex relationship) has used his own sperm in the creating of the stored embryo, then the embryo may continue to be stored if both gamete providers continue to consent, and the female partner (or the other male partner, as above) do not have any ability to revoke consent or claim any legal rights over the embryo.
Where neither a sperm donor nor an egg donor has been used, and both parties to the relationship used their own gametes, if the relationship breaks down then either party (as each are gamete providers and would have given written consent to the storage of the embryo at the outset) can revoke their consent and the ‘cooling-off’ period of 12 months, as set out above, comes into play; that being that the embryo can lawfully be stored for a further 12 months from the revocation of consent, to allow that person who revoked consent to change their mind; if at the end of that period that person is still of the same view, then the embryo must be destroyed. This can be a particularly difficult to deal with where it was one of the party’s only possibility of having a biological child.
Significantly, courts in the UK and Northern Ireland do not regard frozen embryos as property of the marriage, and therefore Family Law courts cannot make any decisions or orders about what happens to them after divorce or separation. One may consider entering into negotiation to reach a compromise with their ex-partner about the use of the frozen embryos during the 12-month cooling off period. Our Family Law and Dispute Resolution teams can provide expert legal support to help navigate such a situation.
It can be beneficial to enter into conversations with your partner about the possible eventualities should the relationship break down while the embryos remain frozen to prevent any future unexpected revocation of consent; however, the cornerstone of consent remains, and either of the gamete providers can revoke their consent at any time, regardless of whether they promised or agreed to certain things earlier in the relationship.