Embryos on separation

With recent legal changes on how long embryos can be stored, it's likely that couples will have to deal with what happens to their embryos on divorce or separation.

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Imagine you and your partner have been trying to have a baby for years, and you've finally decided to go through IVF treatment. You create some embryos together and store them in a clinic, hoping to use them when the time is right. But then, things go wrong. You end up breaking up or divorcing, and you're left wondering what will happen to your precious embryos.

This is not just a hypothetical scenario. It's a reality for many couples who have undergone fertility treatment and have embryos in storage. And it's not an easy situation to deal with, especially when emotions are running high.

Unlike other assets that you might have to divide on separation, embryos are not considered property by the law. They are also not considered living beings with rights of their own. They are somewhere in between, and they need the consent of both people who created them to be used or disposed of.

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That means that if you want to use the embryos to have a child after you split up, you need your ex-partner's agreement. And they can change their mind at any time, even if they agreed before. If they do, you have 12 months to try to persuade them otherwise, or to seek legal advice. If nothing changes, the embryos will be destroyed.

This can be devastating for the person who still wants to use the embryos, especially if they have no other way of having a biological child. It can also be stressful for the person who doesn't want to use the embryos, as they may feel pressured or guilty.

There's no easy solution to this dilemma, and each case is different. Some couples may be able to reach a compromise, such as donating the embryos to another couple or to research. Others may have to go to court, which can be costly and time-consuming. The best thing you can do is to think carefully about your options before you create and store embryos, and to communicate openly with your partner about your wishes and feelings. You should also seek professional counselling and legal advice if you are facing this issue.

What happens to embryos in the event of divorce or separation is a complicated issue both legally and emotionally. In many cases, those embryos will represent at least one of the couple’s last chance to have a child genetically related to them. 

The law does not regard embryos as “matrimonial” property and the family courts cannot make orders about their division or distribution on divorce.

The law in the UK requires the consent of both would-be parents for the use of embryos in future treatment. However, consent can be withdrawn at any time. If one person withdraws their consent, a 12-month “cooling off” period is triggered. If there is no change in that person’s view, the embryos will be destroyed. 

Even if there's an agreement that the embryos can be used following separation, there may still be legal implications in terms of parentage which should be considered before a final decision is made. 

What you need to know

In 2022, the UK Government changed the law on frozen storage of embryos and gametes and increased the storage limit from 10 years to 55 years.

Frozen embryos cannot be divided or distributed by the court.

Agreements to the use of embryos in fertility treatment after separation are likely to have implications for legal parentage.

It's important to deal with these issues as early as possible following separation and in a constructive and non-confrontational manner.

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Our team of specialist family lawyers are hee to support you if you're facing issues related to embryos on separation. Speak to our team today. 

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Our family lawyers and mediators are uniquely placed to advise on family law issues involving fertility and embryology law issues. We recognise that in cases where these issues arise, they are often at the forefront of our clients’ minds and they require careful and sympathetic handling. 

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Embryos on separation FAQs

Embryos are fertilised eggs. Often with IVF or ICSI treatment, there may be some good quality embryos left after embryo transfer. Instead of disposing of them, there is the option to freeze them to use in the future. 

This is tricky. Whilst it is possible to “donate” embryos, the current rules do not enable you to “donate” your embryos to someone who you created embryos with. As such, if you are the sperm provider and agree to your ex using those embryos in future fertility treatment, the law will treat you as the legal father unless your ex is married or in a civil partnership with someone else at the time of the treatment. This can lead to a child support obligation. We can advise you on how best to protect yourself against potential future claims. 

UK fertility clinics are required to contact patients and gamete providers at least every 10 years to make sure that the consent they gave for the continued storage of embryos is still valid. They are also required to check that the consent is still valid before any treatment starts. 

The law of the country where the embryos are stored will determine whether they can be used. The laws may be more flexible or even stricter than the laws in the UK. However, there are likely to still be UK legal parentage issues to be considered even if the overseas laws differ. Legal advice is still essential. 

UK regulations would require licensed clinics in the UK to obtain the consent of the gamete providers to do this, and the clinic would then need to consider various requirements for them to export the embryos. It is worth noting that not all HFEA licensed clinics in the UK have export licenses and so in some cases, even where it is permissible to export embryos, you may have to first transfer the embryos to a clinic which has a license to export them. 

If you want your embryos to be used and stored after death, you’ll need to have given all the appropriate consents for this to your clinic. For example, if in the event of your death, you would like your partner to be able to use your embryos in their own treatment or with a surrogate, your partner must be named on the relevant consent form. If a surrogacy arrangement would be required, you will need to receive relevant information, be offered counselling, undergo further screening tests and complete additional consent forms before you die. It's important that you discuss posthumous use with your clinic. 

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