The number of couples using IVF treatments to conceive is rising. According to the Human Fertilisation and Embryology Authority (HFEA) IVF birth rates in 2019 were three times higher than in 1991 with over 390,000 babies born during that period. 

But whilst IVF offers many a chance to have a biological family when it otherwise would not have been an option, some who have undergone IVF treatments have had to face the unexpected question of what happens to the embryos previously stored if the relationship breaks down.  

This is a highly sensitive topic, particularly in cases where it may no longer be medically possible to create fresh embryos with another partner or donor. So, it is crucial that couples are aware of all the possibilities from the outset. 

Frozen embryo transfer 

As the numbers of IVF treatments have risen, so too have those who have decided to pursue frozen embryo transfer – a term referring to the use of embryos which have been stored for a time before use – with frozen embryo transfers increasing by 86 per cent from 2014-2019.  

There are numerous reasons couples may decide to preserve life, such as waiting for later life or for medical or financial rationale, and the increase in those choosing this route reflects the marked improvements in the techniques and technology around freezing. 

Ruled by consent  

The sensitive nature of embryo storage means that it is constrained by strict regulations and relies upon the clearly documented consent of both participants. When an embryo is created and stored, the conditions of the consent are recorded at that time, including: 

  • How long the embryos are to be stored for. 
  • What should happen if either party were to die or become unable to make decisions for themselves. 
  • Whether the embryos are to be used for your own treatment only, donated, or used for research. 

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

Establishing consent is an essential part of your treatment and you should make sure you fully understand all the issues involved before doing so. 

If consent to treatment or storage is not properly given it could have serious implications for how your embryos are used and stored, and in some cases, who is considered to be a legal parent of your child. 

Mistakes with consent to treatment or storage have, for example, led to embryos, eggs or sperm being destroyed because proper consent to storage wasn’t given. 

What happens if you divorce or separate? 

Where it can become increasingly complex is if a couple goes on to separate, and consideration must be given to what happens to embryos still held in storage. 

Under current UK law the storage of embryos and their use can only continue if both parties consent. However, consent can be varied or withdrawn at any time before the embryos are used for fertility treatment.  

If one party decides that they do not want their embryos stored or that they do not want the other person to use them, they are entitled to change their minds.  

According to HFEA once consent is withdrawn there is a 12-month ‘cooling off’ period to allow for considered decision-making. If a person is still adamant that they no longer want embryos to be stored or used, embryos must be destroyed. 

As things stand, the Courts of England and Wales have no authority to intervene on behalf of the party who wants the embryos to be preserved. When forced to balance one person’s right to be a parent with the other’s objection to becoming a parent, the right to a family life does not override the withdrawal of consent for the embryos to be used – even where it is a party’s last chance of becoming a biological parent. 

This has, however, unfortunately led to a rise in the number of individuals forging consent to maintain the storage of embryos, and in some cases using frozen embryos to have a child. If consent is forged and a child is born as a result, the legal ramifications are extremely complex. 

Consider your options 

If you do decide to divorce or separate from your partner or spouse, it is crucial that you fully consider your options for varying or withdrawing your consent. These could include: 

  • Agreeing to the continued storage of the embryos. 
  • Agreeing to the use of the embryos for future IVF treatment.  
  • Donating the embryos to a single person or couple. 
  • Donating them to science and research. 
  • Requesting that they be destroyed. 

The motivations for preserving fertility and storing embryos are unique to each couple, and what’s right for you may not be right for everyone. Moreover, the impact of decisions made will affect fertility and a future ability to have a family, so it’s crucial to seek the advice of a specialist legal advisor who can guide you through the options and any potential legal and emotional implications. 

At RHL Solicitors we work to make your life easier when it comes to legal support, while providing you with an exceptionally high standard of care. 

If you are considering matters following the breakdown of a relationship or planning for the future in the event that your current relationship breaks down, contact our Family Law team who will be more than happy to discuss your matter further. 

RHL Solicitors will have no delays or waiting times in advising you on your situation and will be quick to get you the support and care you deserve.