Embryos on separation

Embryos are fertilised eggs. Often with IVF or ICSI treatment, there may be some good quality embryos left after embryo transfer. Instead of disposing of them, there is the option to freeze them to use in the future.  

This is tricky. Whilst it is possible to “donate” embryos, the current rules do not enable you to “donate” your embryos to someone who you created embryos with.

As such, if you are the sperm provider and agree to your ex using those embryos in future fertility treatment, the law will treat you as the legal father unless your ex is married or in a civil partnership with someone else at the time of the treatment. This can lead to a child support obligation. We can advise you on how best to protect yourself against potential future claims.  

UK fertility clinics are required to contact patients and gamete providers at least every 10 years to make sure that the consent they gave for the continued storage of embryos is still valid. They are also required to check that the consent is still valid before any treatment starts.  

UK regulations would require licensed clinics in the UK to obtain the consent of the gamete providers to do this, and the clinic would then need to consider various requirements for them to export the embryos. It is worth noting that not all HFEA licensed clinics in the UK have export licenses and so in some cases, even where it is permissible to export embryos, you may have to first transfer the embryos to a clinic which has a license to export them.  

While the law in the UK is strict around the requirement for consent, for most couples this is an issue of great significance. Our family lawyers can explore through negotiation or mediation whether there is any scope for an agreement to be reached.  

This should be something your clinic discusses with you. There are various options including donating them to someone else, donating them to research or training, or agreeing to them being destroyed.  

If you want your embryos to be used and stored after death, you’ll need to have given all the appropriate consents for this to your clinic. For example, if in the event of your death you would like your partner to be able to use your embryos in their own treatment or with a surrogate, your partner must be named on the relevant consent form.

If a surrogacy arrangement would be required, you will need to receive relevant information, be offered counselling, undergo further screening tests and complete additional consent forms before you die. It is therefore important that you discuss posthumous use with your clinic.  

If you consent to your embryos being used for treatment after your death, the law allows the embryos to be stored for your named partner’s use for up to 10 years from the date of your death. You must consent to both the use and storage of your embryos continuing after death. This storage period cannot be extended although you can shorten it. If your named partner does not use the embryos, the embryos will be destroyed. 

Yes, you can, provided the embryos haven’t already been used in treatment. Even if you’ve already created an embryo, you can withdraw your consent at any point up until it’s transferred to the womb. If this is something you are thinking about doing, remember that it is important to deal with this in as a constructive and non-confrontational manner as possible.