1980s laws, 21st century families: the IVF limbo
The current law in the UK surrounding divorce and relationship breakdown is often criticised for being outdated and in need of reform. This stems from the fact that the concept of family has developed significantly since the legislation was passed by Parliament, in some cases, many years ago. This is keenly felt in the area of in vitro fertilisation and surrogacy. For example, who holds the legal rights to embryos? What happens if a couple split up but one still wants to use the embryos to conceive? Can they do so without the consent of the other? To address these questions, it is necessary first to provide some context.
storage and subsequent use of embryos
Modern scientific methods to assist couples in realising their family plans have allowed for human embryos (in this article we shall focus on embryos which are created using women’s’ eggs and their partners’ sperm) to be stored and subsequently used to have children. This allows couples to freeze their embryos with the intention of preserving their chances of having a family in the future. A couple may create, freeze and store embryos for use later in IVF treatment once the couple is ready to have a family. This storage may be due to a number of reasons which may make it difficult for the couple to conceive a child naturally.
However, whilst for many couples the preservation of embryos is the most suitable option from a medical perspective, the case of Natallie Evans referred to below highlights why it is important to also to consider the legal implications since this may also impact upon whether the embryo can eventually be used within fertility treatment.
Natallie Evans’ case
Perhaps the most high-profile UK case was Natallie Evans’ case in 2007. In this case, Ms Evans had fertilised eggs with Mr Johnston’s sperm, resulting in six embryos. This was before undergoing cancer treatment, which rendered her infertile. The couple broke up and Ms Evans wanted to use the embryos. However, Mr Johnston did not provide his consent for her to do this. Ms Evans subsequently took the case through the UK courts and lost due to the lack of consent from her former partner. She ultimately took the case to the European Court of Human Rights in Strasbourg. However, the ECHR held that her right to become a parent of her own biological children (right to family life) did not overrule her partner’s right not to have children with her.
The UK’s legal position
The above case demonstrates that it is unlikely that such a case will succeed on human rights grounds. It is, therefore, important to examine the UK’s current legal position.
This area is primarily governed by The Human Fertilisation and Embryology Act 1990. This requires that consent be provided from both the egg and sperm provider for the storage and use of their embryos. However, crucially, either party can withdraw consent at any time before the embryo has been placed inside the woman. If consent is withdrawn, this triggers a 12-month cooling off period. During this period, the embryos cannot be used. The period is there to allow the party who withdrew consent to change their mind. If they do not, the embryos must be destroyed after the 12 month period has expired.
In the USA, the relevant laws differ from state-to-state. In the 2015 Californian case of Findley v Lee, which had similar facts to Evans and the same outcome, the Court reached this outcome by focusing on the consent form which the couple signed before the embryo was created. This can be distinguished from the UK’s legal approach which, rather than focusing on what the parties agreed at the outset, focuses on ongoing consent, which can also be withdrawn at any time before the embryo is used.
It is clear from the above that, even if you and your partner may have broken up, either of you may still use your embryos to conceive, provided you have consent to do so from the other party at the time you are seeking to use the embryos. Conversely, if one party withdraws their consent prior to that stage the embryos may only be used if that party changes their mind prior to the expiry of the cooling off period.
How Grayfords can help
Neil Scott Graham, a Partner at Grayfords comments as follows; “the law surrounding assisted conception and surrogacy is not straight forward and you should always seek specialist legal advice in conjunction with specialist medical advice. The statutory legislation governing this particular area is disparate and dates back to the 1980s and the early 1990s. The Law Commission commenced a consultation on 6 June 2019 which closes on 27 September 2019, during the course of which contributions are welcomed with a view to their publishing final recommendations for reform of the law so as to make the process more transparent, uniform and workable for surrogates, parents and children alike. Contributions can be made via https://consult.justice.gov.uk/law-commission/surrogacy. We remain at your disposal to assist with providing specialist legal advice in this area.”
This article was written by Neil Graham.