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Embryo storage after divorce or separation

While most people are relatively familiar with couples disentangling finances, dividing possessions and agreeing custody arrangements for children after divorce, what should separating couples do with their frozen embryos? With IVF on the rise, Stowe Senior Associate Gemma Davison looks at the difficult, but necessary topic of embryo storage after divorce or separation.

Rising IVF Rates

Increasing numbers of children are born with the assistance of IVF each year. According to the Human Fertilisation and Embryology Authority (HEFA) IVF birth rates in 2019 were three times higher than in 1991 with over 390,000 babies born during that period. The use of frozen embryo transfer, that is embryos which have been stored for a time before use, is on the rise with frozen embryo transfers increasing by 86% from 2014-2019. This reflects the improved freezing techniques now available and gives more people options for preserving fertility for:

  • Medical reasons
  • Until later in life
  • For trans people

Embryo storage consent

Embryo storage is governed by strict regulations and relies upon the clearly documented consent of participants. When an embryo is created and stored the conditions of the consent are documented at that time, including:

  • How long the embryos are to be stored for
  • What should happen either person were to die or become unable to make decisions for yourself/themselves.
  • Whether the embryos are to be used for your own treatment only, or whether they can be donated, or used for research
  • Any other conditions you may have for the use of your embryos.

Consent can be varied or withdrawn from either party at any time before the embryos are used for fertility treatment. If a couple then go on to separate, consideration should be given to what happens to embryos still held in storage.

The standard storage period for embryos is normally 10 years (extended to 12 years due to COVID), although women in certain circumstances can store their embryos for up to 55 years.

Withdrawing consent

If one person withdraws their consent, then the embryos cannot be used in treatment. There maybe a ‘cooling-off’ period of up to a year. If after this time there is still no consent to use the embryos, they’ll be removed from storage and will consequently perish. The Courts of England and Wales cannot override the withdrawal of consent by one person.

What happens if you divorce or separate?

While this is an incredibly sensitive, it is important to fully consider your options for varying or withdrawing your consent when you divorce of separate from your partner or spouse. There are a range of options. You may:

  • Agree to the continued storage of the embryos
  • Agree to use of the embryos for future IVF treatment (although this would need to be given careful consideration as there as implications for legal parenthood)
  • Donate the embryos to a single person or couple
  • Donate them to science and research
  • Request that they be destroyed.

The reasons for preserving fertility and storing embryos are unique to each couple, and what’s right for you may not be right for everyone. While the impact of decisions made will affect fertility and the future ability to have a family, it is vital that couples are aware of all of the options.

Useful links:

Human Fertilisation and Embryology Authority

British Fertility Society

Fertility Network UK

 

Gemma specialises in financial settlements following a relationship breakdown including pensions, property international assets, spousal maintenance and businesses. She is also experienced in challenging child law matterrs along with surrogacy and adoption.

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