What happens to your embryos if you separate from your partner?
Couples who are undergoing, or who have undergone, fertility treatment to aid conception often find themselves in the midst of a legal minefield if their relationship breaks down. What is already a hugely emotive topic can become even more fraught upon the breakdown of a relationship.
This article is intended to clarify the legal position, specifically in relation to the rights associated with embryos, when relationships come to an end.
What is an embryo?
An embryo is the term used to describe an unborn child prior to the stage it is deemed a foetus. This is usually the period between two and eight weeks following fertilisation.
How long can you store an embryo for?
Schedule 17 of the Health and Care Act 2022 grants those who are receiving fertility treatment, the ability to store their gametes (eggs or sperm), or embryos, for up to 55 years. It should be noted that this is not a set time frame, and to be reviewed at a minimum every decade.
Prior to this coming into force on 1 July 2022, it was only possible to store gametes or embryos for up to 10 years, save for extreme cases such as premature infertility, which allowed for a 55-year storage period.
Fertility medics tend to prefer embryo freezing as opposed to egg freezing as the success rate of embryo freezing is greater. This, alongside the fact that embryos can now readily be stored for more than half a century, means that any couples who have undergone embryo freezing in the past who subsequently separate are now facing legal challenges in relation to the rights associated with the embryos in storage.
Consent
Consent must be given at the outset to use gametes for fertility treatment. A person can withdraw their consent at any time prior to an embryo being used.
The position for birth mothers
A person who gives birth to the child is the biological mother, irrespective of whether that child is genetically their own, according to section 33 of the Human Fertilisation and Embryology Act (HFEA) 2008.
Section 47 of the HFEA 2008 confirms that a woman can donate her eggs or embryos to another and not automatically be deemed a legal parent of the child. However, her consent for the use of her eggs or embryos must have been obtained prior to them being transferred.
The position for spouses
Where the father is genetically related to the child, they will be a legal parent if no other person exists who may be a legal parent instead. This is because only a total of two people can be defined as legal parents under law.
In the case of P v Q & Ors [2024] EWFC 85 (B), there were three possible parents in the mix: the birth mother, the former wife of the birth mother, and the biological father. In this case, it could not be proven whether the birth mother had conceived via artificial insemination or natural insemination. Following the breakdown in the birth mother and wife’s marriage, the birth mother wished for the biological father to be held as the second legal parent instead of her former wife. As the court could not prove on the balance of probabilities how the child had been conceived, the former wife could not be presumed to be a legal parent, hence the biological father was deemed to be a legal parent instead.
Section 35 and 42 of the HFEA 2008 confirm that the father or second mother who is married to, or in a civil partnership with, the birth mother but does not have a genetic relationship to the child will be the legal parent of the child, unless they did not give consent to the fertility treatment.
It does not matter if the father or second mother consented to be a parent; what matters is whether they consented to the transfer of the embryo, or artificial insemination.
The case of R v S (Children: Parentage and Jurisdiction) [2023] EWCA 897 clarifies that simply being aware of the procedure is not enough; actual consent, which can be proven on the balance of probabilities, of the father or second mother must be sought.
Avoiding the pitfalls
If you do not want to be considered a legal parent of an unborn child, it is important that you inform the relevant fertility clinic and formally withdraw your consent. Once your consent has been withdrawn, and if no agreement with your partner can be reached about the use of the embryo, the embryo will be destroyed after one year has passed.
The Birketts view
Fertility treatments and associated consents of storage and use of gametes and embryos require careful consideration and ongoing review. It is important to seek specialist legal advice and if there are any uncertainties regarding any of the content mentioned in this article please contact the head of our Modern Families’ team, Jennifer Headon.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2024.