Withdrawal of donor consent after the creation of embryos requires HFEA intervention

Two couples within the course of their fertility treatment have recently expressed their frustration and disappointment at the late withdrawal of consent by their sperm donor (see BioNews 1356).

Both couples had been successful in their first cycle of treatment, with additional embryos in storage for the creation of genetic siblings (see BioNews 1356). But long after those embryos were created and before any future transfers, their donors each withdrew consent to use.

Neither couple has aimed their frustration at the donor, but they have posed a fairer question: does the current law strike the right balance on consent once an embryo already exists?

As the medical and scientific directors of London Sperm Bank, we must report that while these are rare occurrences, when they occur we confront traumatic consequences for those affected. One of the couples described the news as 'devastating': 'for us, this means that the 10 embryos we created may ultimately be lost,' they wrote. 'Because when we look at those embryos, we don't see something abstract, we see the possibility of our future family and the possibility of our little boy having a full genetic sibling.'

The current law in the UK – explained rather ambiguously on the Human Fertilisation and Embryology Authority (HFEA) website – gives gamete donors the right to withdraw consent at any time up to the point of embryo transfer. If storage consent is also withdrawn, storage remains lawful throughout a 'cooling-off' period of up to 12 months; unless consent is restored, the embryo must then be allowed to perish.

During that period, however, the 2008 Human Fertilisation and Embryology Act defines only those for whose treatment the embryo was intended as 'interested persons' whose consent may bring storage to an early end; a third-party donor is not so defined. Yet, according to the same Act, the donor remains a 'relevant person' whose effective consent is still required for use after the cooling-off period and for continued storage.

It is this anomalous regulation which gives third-party donors – as in the cases cited above – the right to end recipient treatments even after the creation of embryos and their transfer in an earlier cycle. We believe that embryo creation should, as in Denmark, the largest European recruiter of sperm donors, and other European countries, be the donor's point of no return for withdrawal of consent.

Our view in such cases is not to deny the fundamental principle of consent. A donor should have an absolute right to decide whether an unused egg or sperm sample may be used. That decision must be informed, voluntary, and supported by proper counselling. But consent also needs a clearly defined endpoint.

Thus, once a donated gamete has been used to create a specific embryo, it no longer exists as a separate egg or sperm cell awaiting use. The one act for which consent was sought - the use of that gamete to create the embryo - has been completed. What remains is not the donor's unused gamete. It is an embryo created by someone else for their treatment. It is an altogether different situation: it is a gamete that is donated – not an embryo.

For the recipients, any late withdrawal of consent may have very significant consequences: in terms of cost and precious time wasted, as well as deep disappointment and a sense of loss. Age or illness may mean that starting again is not a realistic option. It seems at least a matter of fairness that, when a donor's informed consent has been acted upon to create an embryo, the recipient should be entitled to rely on that consent for the agreed treatment.

Thus, before fertilisation, the donor would retain his right to withdraw consent. But once an embryo has been created with valid consent, the donor would no longer be able to prevent that embryo from being stored or used in treatment by the recipient for whom it was created.

Such regulatory changes would also be more appropriate in a clinical age of vitrification, frozen embryo transfer and 55-year extended storage limits. Moreover, such a change would remove the perceived pressure some donors may feel to withdraw consent when requested to do so by – for instance – a new and sometimes transient partner.

The HFEA has publicly acknowledged a need for legislative changes, which were openly reported in 2023 and included a section on 'consent' and its overhaul (see BioNews 1216a and 1216b). Some of these proposals were recently debated in the House of Lords, but a government spokesman ruled out any immediate reform in this Parliamentary session. Meanwhile, cases such as the two cited above are able and likely to continue, as the volume of cryostored embryos grows along with the prevalence of gamete donation as a fertility treatment.

Our first call is for clarity in the terms applied to consent and its withdrawal by third-party donors. Even the HFEA's own advice tells donors that consent can be withdrawn 'providing your eggs, sperm and embryos haven't already been used in treatment'. 'Your' embryos? But, in the next sentence: 'you can withdraw your consent at any point' until the embryo is transferred.

But our main call is for fairer protection of the recipients from a third-party donor's late withdrawal of consent. A consent system should protect both the donor's autonomy and the recipient's reliance. Before a donated gamete is used, donor choice should be decisive. After a consented embryo has been created, patient certainty should prevail.

That is not the abandonment of consent. It is consent with a clear, fair and humane boundary in which protection of the recipient plays an equal part.

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Professor Nick Macklon will be discussing science communication and public engagement at the, Marcus Pembrey BioNews Writing Prize event, taking place in central London on the evening of Wednesday 7 October 2026.

All are welcome to attend. Find out more and register for the event here.