Consent agreements for cryopreserved embryos: the case for choice

Embryos created by IVF can be cryopreserved (stored) for possible future use. All couples who have embryos stored in the UK are currently bound by law to a single form of agreement, allowing each genetic parent to withdraw consent at any time before the embryo is transferred. This article makes the case for allowing an alternative consent agreement under which one genetic parent can, if he or she so chooses, cede future control over the embryos to the other. Giving couples such a choice will better enable them to store embryos under an agreement that is appropriate for their circumstances.

The current situation

Under current UK law, each genetic parent of stored embryos maintains a veto over their use in fertility treatment. This applies universally, regardless of the circumstances or wishes of a couple at the time embryos were created. Even if one genetic parent wishes to give up their right to this veto, they cannot do so.

The circumstances of couples who have embryos stored vary considerably. Routine IVF, in which the aim is to produce an immediate pregnancy, commonly produces spare embryos in a treatment cycle. These can be stored for possible future use. This is different from the situation facing a woman who is about to undergo medical treatment that risks damaging her fertility. She and her partner may choose to create embryos solely for possible future use.

Many readers will be familiar with the case of Natallie Evans. She had embryos created with her fiancé, prior to undergoing cancer treatment that included removal of her ovaries. The relationship ended and he withdrew consent. She thereby lost her sole remaining chance of having her own genetic children, with the case finally being decided against her in the Grand Chamber of the European Court of Human Rights.

There has been recent progress in the cryopreservation of unfertilised oocytes. It is generally believed, however, that this remains less effective that cryopreserving embryos. So, from a strictly medical point of view, aside from the possible risks of withdrawal of consent, a woman about to have her ovaries removed is likely to have a greater chance of becoming a genetic mother from a cycle of IVF with her eggs fertilised with the sperm of her partner (or a donor) and the resulting embryos cryopreserved than from a cycle of egg collection with her unfertilised oocytes cryopreserved. In contrast, sperm can generally be stored for future use in a process that is usually effective, inexpensive and non-invasive.

Our proposal

We propose that when embryos are created and there is a prospect of cryopreserving some or all of them, the genetic parents should be offered a choice of agreement about their future use. One option would be that consent can be withdrawn by either genetic parent at any time up to embryo transfer, exactly as at present. We propose a second option under which one genetic parent can cede control to the other. Under this option, it would be up to the genetic parent who retained control to decide if any of the embryos are transferred, subject to the prevailing regulations for treatment. Couples would agree, before fertilisation, whether they choose to share control over the future use of embryos, or alternatively one of them will have sole control. This proposal does not remove any option currently open to people wishing to store embryos. It simply creates an extra option that they may choose should they both agree to it.

In some situations it could be in a genetic parent's interests to be able to sign away their veto over the use of embryos. Suppose a woman facing the imminent loss of her fertility would like to have embryos created with her partner, but (in the light of Natallie Evans' misfortune) is unwilling to do so if he retains the right to withdraw consent later. Then it may be in her partner's interests to cede control of the embryos to her.

A practical consideration concerns time limits over which an agreement about the use of embryos would apply. It would be possible to stipulate that in an agreement in which one partner has sole control, there is no time limit over the duration of sole control, other than any statutory limits for embryo storage. Alternatively, there could be a specific time limit within which the controlling partner would be able to use the embryos, but if he or she wished to use them outside this limit, a new agreement or renewal of the original agreement would be required.

Possible Objections

We consider two possible objections to our proposal. The first is harm to a third party - either the child itself or society as a whole. A second possible objection is that it is wrong to allow someone to sign away their future control over such an intimate choice. Our analysis leads us to reject both objections - space does not permit us to reproduce the full arguments here, but they can be found in the published article (1).

It is of course essential that people have a clear understanding of any agreements they enter into. Any concerns about people acting voluntarily and knowledgeably would be better addressed by strengthening consent procedures than by simply not allowing choice. To enhance the consenting process, individual advice to each of the partners separately may be beneficial.

Conclusion

The present legal framework in the UK allows only a single type of consent agreement for the use of cryopreserved embryos. We propose allowing people a choice of agreement. Our analysis leads us to conclude that our proposal better recognises and protects individual autonomy than the current legal framework. We also suggest that the current system particularly disadvantages women, whose biological investment in reproduction is more substantial than that of men, and who are more vulnerable to the possible loss of future genetic parenthood as a result of withdrawal of consent by another party.