Since 1991, the number of IVF cycles has increased significantly with success rates also growing. With freezing techniques improving, according to the Human Fertilisation and Embryology Authority (HFEA), frozen embryo transfers continue to increase year-on-year. In fact, the HFEA state that frozen embryo transfers increased by 86 percent from 2014 to 2019 (see BioNews 1097). According to the HFEA, the typical patient undergoing treatment will have a single fresh embryo transferred in their first cycle with additional embryos stored for use in subsequent cycles.
It is clear that the advancement in such techniques has offered many people the opportunity to have a biological family, who otherwise would not, and embarking on such treatment as a couple is an exciting yet anxious and daunting time. However, storing embryos for future use, means couples run the risk of eventually facing the difficult and often unanticipated question of what should happen to embryos they created together, in the event their relationship breaks down. This is an increasingly challenging area and one which raises extremely sensitive and emotive questions.
At present embryos created for fertility treatment can be stored for a maximum of 10 years under the Human Fertilisation and Embryology Act 1990 (although this has been extended to 12 years due to the COVID-19 pandemic and there are calls to increase it further). A central concept within fertility treatment is that of consent, and whether these frozen embryos, following a separation, can then continue to be stored, used for treatment, or destroyed is dependent on the mutual consent of the parties. By law, the embryos can only be used for the purposes that each of the parties have given their consent to.
At the outset of treatment, the parties' consent is recorded by the completion of various forms with the fertility clinic, however, it is possible for either party to change their mind and subsequently withdraw or vary their consent, in writing, at any point up to the implantation of the embryo in the womb in the UK. This withdrawal or variation can give rise to some difficult and distressing situations.
In the event that one party withdraws their consent to the continued storage of the embryo, then the law requires the fertility clinic to take all reasonable steps to notify those due to be treated with that embryo of the withdrawal. A 12-month cooling-off period is triggered from the date the fertility clinic receives the written withdrawal of consent, during which the embryos will continue to be stored – but cannot be used – to enable the parties to consider their position and the way forward.
After 12 months if both parties do not consent to the continued storage, the embryos will be destroyed. This is a distressing situation for parties following separation where one party is making the difficult decision to destroy the embryos whilst the other wishes to continue to keep them for potential use in the future. This raises such deeply personal and emotional concerns for all involved.
This issue has been challenged through the courts and through to the European Court of Human Rights where the court had to balance one party's wish to use the embryos and the other party's objection to the use of them. The court held that the right to respect for family life did not override the fact that the other party had withdrawn their consent to the embryos being used. The court determined that it has no power to intervene on behalf of the party who wants their embryos to be preserved.
An increasing and not uncommon aspect to the use of embryos is where a separating couple, who remain on amicable terms, are considering moving forwards with using the embryos post-separation. This can raise difficult issues practically, legally, and also emotionally as each party endeavours to understand their role and respective legal positions. Often, the parties have been on a long journey and despite the separation, they may still wish to support the other in the use of the embryos, whether on a co-parenting basis or one party moving forwards with sole treatment. Consent to one party moving forwards with the use of the embryos solely is often sought on the condition that the other has no legal status or financial responsibility for any child born, and this is a complicated and grey area of the law.
If the parties are married or in a civil partnership and use the embryos in treatment, then both parties will be considered the legal parents unless one party can evidence that they did not consent to the treatment, and this is a complicated legal question. This applies equally whether the second parent is biologically related to the child or whether donor sperm is used. If the parties were not married or civil partners and treatment was with donated sperm or embryos, then in the event of relationship breakdown consideration should be given to any variation or withdrawal of consent to legal parenthood. The law is especially complicated if the embryos were created with the sperm of the former partner and he seeks to donate the embryo to the other party for sole use.
The issues which surround the use of an embryo created in treatment together are wide and far-reaching for the individuals concerned. The strict application of the law can lead to difficult and emotionally challenging situations. The storage and use of the embryos continues to be a matter of mutual consent and in the event of a relationship breakdown, careful consideration needs to be given to the best way forward for both parties involved.