MODERN FAMILIES: Embryos on separation

On 1 July 2022 Schedule 17 to the Health and Care Act 2022 came into force. It permits all patients undergoing fertility treatment to store their eggs, sperm or embryos for a maximum of 55 years (in effect lifetime storage), subject to choosing that term and renewing their consent at least every 10 years. It was heralded as a landmark change. Prior to this, unless patients were permaturely infertile, the maximum storage period was 10 years.

Given the medical preference for freezing embryos over freezing eggs (due to higher success rates of treatment), it is likely that more separating couples in the future will have embryos in storage and this issue will become an increasingly important one for family lawyers.

Where a person’s gametes (sperm or eggs) are used, the requirement of that person to give consent to their usage is the lodestar (see Evans v Amicus Healthcare [2004] EWCA Civ 727). Such consent (as was the case in Evans) may be withdrawn at any point in time before the embryos are used. Embryos are not chattels which can be divided by the court pursuant to the Matrimonial Causes Act (MCA) 1973  or their beneficial ownership determined pursuant to the Trusts of Land and Appointment of Trustees Act 1996 (although arguably the costs of storage of embryos could form part of an order pursuant to the MCA 1973).

What happens then when a couple separate and they jointly, or separately, wish to use embryos they have created (whether with their own gametes or donor gametes) for treatment? To answer that question, various factors need to be determined.

Who is a legal parent?

The mother will always be the person who gives birth to the child regardless of whether or not she has any genetic relationship to the child – see section 33 of the Human Fertilisation and Embryology Act (HFEA) 2008.

Determining who is the father or second legal parent will depend upon the relationship status of the mother and whether or not, in respect of a father, his sperm is used. The fact that a woman donates eggs (or embryos created with her eggs) to another person has no impact upon legal parentage pursuant to HFEA 2008 s47, although her consent to the usage of her gametes must be in place at the point of use.

If the father/second legal parent has no genetic relationship to the embryo

Assuming the father/second legal parent has no genetic relationship to the embryo but is married or in a civil partnership with the mother, they will be presumed to be a legal parent unless it can be shown s/he “does not consent” to the treatment pursuant to HFEA 2008 ss35 and 42 . Notably, the issue of consent is to the treatment rather than consent to being a legal parent. This therefore means that if a spouse/civil partner consents to their separated spouse/civil partner undergoing fertility treatment whilst they remain married/civil partnered there is a risk they could be a legal parent of any child born through that treatment. Traditionally, many lawyers have advised that knowledge or awareness alone that the treatment is taking place may be sufficient to demonstrate consent.

As per the Court of Appeal in Re S [2023] EWCA Civ 897, the appropriate approach is to undertake an evaluation of the facts taking into account all of the circumstances of the case. Re S makes plain that acquiescence is not the same as consent nor is awareness that a procedure is being undertaken, although it is a precondition to the possibility of consent having been given. Careful thought should therefore be given before informing a separated partner that the other intends to proceed with treatment. If a couple has formally dissolved their marriage or civil partnership then the provisions of HFEA 2008 ss35 and 42 no longer apply and it does not matter that the embryos were created with a former partner.

If the father/second legal parent has no genetic relationship to the embryo and the mother is not married/in a civil partnership then the issue is whether or not the relevant agreed parenthood criteria in  HFEA 2008 ss36-37 or 43-44 are met.

It would of course be possible for a separated couple to ensure the agreed parenthood conditions in those sections continue to be met should they wish to do so after separation, but at any stage prior to the embryo transfer consent to legal parentage may be withdrawn by either the mother or father/second legal parent.

If the father has a genetic relationship to the embryo

The first issue which needs to be considered is whether there is anyone else who may be a legal parent instead (since it is only possible to have at most two legal parents) pursuant to  HFEA 2008 s35 or s42, and if not, any person who may be a legal parent pursuant to HFEA 2008 ss36-37 and ss43-44. If there is no one to whom those provisions apply then the common law position remains that the genetic father will be a legal father of any child born.

This has the rather uneven outcome that at present whilst a man can donate an embryo created with his sperm to a couple and not be a legal parent, it is not possible to donate an embryo for use in treatment by a single woman without that man being a legal parent.

Challenges and pitfalls

Given that the obligation on fertility clinics (pursuant to the HFEA Code of Practice) is to check on a couples’ relationship status when they attend for subsequent treatment cycles (and not within the same cycle), any person who does not wish to be treated as a legal parent will want to promptly inform the clinic of the withdrawal of their consent. However, this sets a 12-month time period in motion after which the embryo will be destroyed if there is no agreement about its use. The reality is that this can mean there is a very real ticking clock for an agreement to be reached.

As consent may be withdrawn at any point up until embryos are used, there is also a real risk that even if a couple are in agreement at the point of separation one may change their mind prior to the embryos being used. If the party who wishes to use the embryo does not intend to use them in the near future then consideration should be given as to whether an option such as exportation to a jurisdiction which does not require continuing consent would be available. In order to export embryos both the HFEA criteria for exportation would need to be met as well as any importation requirements in the relevant jurisdiction.

Whilst fertility counsellors will be available through the parties’ fertility clinic, in light of the 12-month timescale following a notification to the clinic, a couple may instead wish to consider a referral to an external fertility counsellor (the British Infertility Counselling Association has a register of specialist counsellors). It important to note though that whilst such counselling may help both parties deal with the emotional consequences of the issues, the counsellor’s role is not to change one party’s mind and in the event of a dispute consideration should be given to options such as mediation or collaborative law to help parties reach an agreement.

In the event that a couple have used donor gametes and both parties wish to go on to have further children using the same donor, then consideration will also need to be given to the 10-family donor limit which applies to donor gametes used within the UK. Notably though, parties will not fall foul of the 10-family limit if there is an existing child who shares at least one parent with the proposed further child, eg if both parties are the legal parent to an existing child they may both go on to use the same donor without potentially falling foul of the 10-family limit.

In the event that a former partner is considered a legal parent, the only route to extinguish such parentage would be via adoption or a parental order by the parent using the embryos. Even if parties reach an agreement that they will not be registered on the birth certificate and neither will seek a declaration of parentage, such agreements are not enforceable, nor would they prevent the child or those with a “sufficient personal interest” seeking a declaration pursuant to section 55A of the Family Law Act 1986.

If a person is a legal parent but does not wish to have the financial obligations which come with this, then careful consideration should be given as to the extent to which it may be possible to help protect them from any financial claims through a consent order pursuant to Schedule 1 to the Children Act 1989 or the MCA 1973.

Reform

What then of potential reform? The obvious route would seem to be to permit “donation” of embryos created with one of a couple’s sperm to the other without conferring legal parentage (thereby mirroring the position in respect of a woman whose egg has been used and may donate the same without conferring legal parentage) or more generally to permit donation of embryos to a single woman without conferring legal parentage. Other options would be to provide for the court to determine ownership of embryos between parties at the point of separation or to permit embryo agreements to be determinative, thereby avoiding the problems caused if one party will not consent to the use of embryos created with their gametes either at the point of separation or subsequently.

Finally, given the issues caused by the wording of HFEA 2008 ss35 and 42 an obvious change would be to amend these sections to refer to “lack of consent” to the issue of legal parentage (thereby bringing them in line with the provisions of ss36-37 and 43-44 which refer to consent to legal parentage) rather than consent to treatment.

Rose-Marie.Drury@Mills-Reeve.com

Colin.Rogerson@Mills-Reeve.com