Embryo and gamete disputes
Difficult issues can arise where partners (or former partners) with embryos or donated gametes in storage disagree about how they should be used. If you are separating, it is important to consider how you wish to deal with any embryos, sperm or eggs in storage.
Embryo disputes
Either the egg or the sperm provider can withdraw consent to their embryos being stored, or used in treatment, at any time. Any variation of consent has to be in writing and signed. This effectively means that either partner has an absolute veto against the other using the embryos in treatment, as long as he or she withdraws consent in advance.
In a landmark legal battle, Natalie Evans fought against the destruction of her embryos after her former partner withdrew his consent to storage. The court decided that English law did not infringe her human rights in requiring the destruction of her embryos.
Although she lost her fight, Natalie Evans’ story prompted some changes to the law during the passage of the Human Fertilisation and Embryology Act 2008. Most notably, fertility clinics must now follow a strict procedure where an embryo is in storage and one of the gamete providers withdraws consent to storage. The person keeping the embryo must, instead of destroying the embryo immediately, take all reasonable steps to notify everyone for whom the embryo was to be ‘used in treatment’. This includes the other gamete provider (unless he or she is a donor) and the other partner for whom the embryos were created even if they have no genetic stake in the embryo.
Storage of the embryo then remains lawful for 12 months, although it cannot be used in treatment during this time unless both gamete providers consent. If all the people notified confirm that they are happy for the embryo to be destroyed, it can be allowed to perish before the end of the cooling-off period.
If not, the embryo must be held in storage for 12 months, giving the person who has withdrawn consent the opportunity to change his or her mind before the embryo has to be destroyed. If he or she does not change his or her mind, the embryo must be destroyed at the end of the year.
If you have no genetic stake in your embryos (for example, if they were conceived with donated eggs and you are the female partner), you cannot use the legal consent rules to bar your former partner from using your embryos in treatment. However, you may be able to make an application to the court.
It is very important that arrangements are made for any embryos in storage as part of a divorce or separation, so that these rules are not invoked.
Disputes over donor gametes stored for siblings
If you have conceived a child with donor sperm or eggs, you might have stored any surplus for future children, so that your children are full genetic siblings. Difficult issues sometimes arise where partners separate, as to who these sperm/eggs 'belong to', and as to whether one of the partners can use the eggs or sperm to have another child within a new relationship.
A person who has no genetic stake in stored donor gametes or embryos (for example a lesbian couple with donor sperm in storage, or a female partner who has embryos in storage created with donor eggs) cannot use the legal consent rules to stop his or her partner from using them in treatment. However, it may be possible to make an application to the family court for a prohibited steps order.
Gamete donors can withdraw their consent at any time before his or her gametes are used in treatment, even if you have paid to reserve the gametes or embryos for your own use. In relation to gametes, the person keeping them must allow them to perish immediately. If the gametes have been used to create embryos, the statutory one year cooling-off period applies before the embryos can be destroyed.
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