A case in the US state of Colorado has gone to the Supreme Court to address what should happen to a number of frozen embryos following a couple divorcing and being unable to reach an agreement on whether they should be kept for future use (as the wife wanted) or destroyed (as the husband wanted). So far, the courts have ruled in favour of the husband, who does not want to father more children than the 3 he and the wife had together before the marriage ended. The wife has now gained permission to challenged that decision. In the US it is possible for couples to specify at the time they enter treatment what will happen to any remaining embryos if they separate, or to specific that they will allow the court to determine the issue at the time.

We have been consulted by a number of people in England faced with a similar situation. For obvious reasons, it can be an exceptionally emotive issue, especially when following illness or injury, the embryos mark someone's only chance to have a biological child. In England, there is a lot less scope for legal debate between couples. The law governing storage and use of embryos is set out in the Human Fertility and Embryology Act and they key factor is that of consent. In order to continue to store embryos, or use them, both parties must consent. Even if they agreed they would be used for more children in the future, if either subsequently changes their mind, and withdraws their consent, the embryos must, legally, be destroyed within a set period of time. At present, there is no scope in English law for the court's to intervene, as in the Colorado case, to look at what was agreed at the time and what is 'fair.'

As with many aspects of modern scientific methods to build families, it is important that anyone undertaking fertility treatment and the storage of gametes understands the legal position, in order to minimise the risk of heartache in the future, if a relationship breaks down. Advice allows people to make an informed decision about whether to proceed and if so, whether to use all, or only some, of any gametes that have been stored.

It is not uncommon for couples to try and negotiate the terms of continued use after a separation, for example to seek continued permission for storage and use, if the party using the gametes agrees not to make financial claims for resulting children. Again, it is important to understand that such agreements are not legally binding. Legal parenthood is conferred by operation of law and cannot be contracted in or out of. It is also possible that use of frozen embryos without consent could give rise to legal action for damages, as was demonstrated in the case last year of a father trying to sue a Harley Street Clinic, after his ex-partner forged his signatures for use of frozen embryos after they had separated and he had informed her he no longer agreed.

As the law on storage, use and parenthood is technical and generally depends on strict adherence to the law, regardless of what was intended, it is crucial that everyone knows where they stand, and what is required, so they can make informed decisions about how to proceed, both during the good times, and any bad. There are a lot of reputable sources of assistance and information available, as well as many which are not necessarily accurate, so it is always advisable to check carefully the source and accuracy of information before relying on it.

Please do not hesitate to contact our team directly to discuss anything raised in this blog.