Frozen embryos and divorce and separation

Many heterosexual, same-sex and LGBTQ+ couples who are unable to conceive naturally are opting for alternative fertility treatments to create their family such as Intraterine insemination (IU) and In Vitro fertilisation (IVF). These methods are well tested and produce successful results for couples in need.

Single persons or couples may choose to preserve their fertility by freezing their eggs, sperm or embryos. Where embryos are created you, your partner and the donor (where applicable) must provide various forms of consent:

  • How long to store your eggs, sperm or embryos (this can be up to 55 years in some cases);
  • The type of treatment you have, including donation;
  • Use and storage of your eggs, sperm or embryos for training purposes;
  • Who will be the legal parent of a child born if you are using donated eggs, sperm or embryos;
  • What will happen to your eggs, sperm or embryos if you die or lose the ability to decide for yourself.

But what happens if you and your partner divorce or separate before the frozen eggs, sperm or embryos are used for fertility treatment?

It is important to note that only the egg or sperm provider has legal rights over the use or storage of their egg, sperm or embryos created with their eggs or sperm. Any person with consent can withdraw this at any time up to the point of insemination. Once consent is withdrawn there is a 12 month ‘cooling off’ period. If a person is still adamant that they no longer want embryos to be stored or used, the embryos must be destroyed.

In the event of divorce or separation, embryos are not considered an ‘asset’ which can be determined or separated on divorce. The family court do not have the power to intervene on behalf of a party who wants to maintain the storage of embryos for future use. There is also no legally binding agreement that can be made at the time of the embryo freezing which considers the legal position in the event of a divorce or separation. Future decisions will be based on the consent forms provided at the time of the initial freezing process.

Case law has shown that in cases where embryos have been created using the egg and sperm of a separated couple, Courts have found in favour of the party withdrawing their consent where the other party seeks to use the embryo for fertility treatment in the future. In cases where an embryo has been created using only one partners egg or sperm (for example where a donor has been used), the partner whose gametes have not been provided could not use the frozen embryo for future treatment unless they obtained the consent of all parties.

Where embryos are used post-divorce or separation, this can also raise issues in respect of who should hold legal parentage for the child. This may involve further court proceedings to provide a declaration of parentage or in surrogacy cases, to apply for a parental order to provide the intended parents with legal rights over the child.

If you are considering fertility treatment now or in the future it is important to understand the legal position before you embark on this complex journey. Please contact one of our specialists at Sintons for advice.

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