Relationship breakdown following IVF

Where embryos are held in storage which have been created using both partners’ gametes, they can be stored for a maximum of 10 years (extended by two years during the pandemic), subject however to both partners continuing to consent to storage during this time. This raises the question of what happens if, following treatment, the couple decides to separate?  

Not only will they have the usual issues to resolve, such as how any assets should be shared between them and what arrangements should be put in place for any existing child/children, but they will also have to face the difficult decision of what should happen to any embryos created together which are held in storage.  

IVF and relationship breakdown

According to the Society of Assisted Reproductive Technology, undergoing fertility treatment is as stressful, if not more stressful, than a number of life events, including the death of a family member. The process itself can go on for months or even years and during that time the couple will be forced to navigate the ups and downs of treatment. Not only will they have to endure the physical side effects of the medical treatment, but they will also have to overcome waves of emotion, stress and on occasion the disappointment that often goes hand-in-hand with the process.

In addition, there are the financial implications of undergoing treatment. It is, therefore, no surprise that IVF places a considerable strain on even the closest couples and many relationships fail to withstand the process.

Prior to starting fertility treatment, both partners will be asked to complete various forms recording their consent to treatments and the storage of any embryos created as a result of such treatment. It is, however, open to either partner to change their mind and either withdraw or vary their consent at any time before the embryos are implanted. This can give rise to some very challenging and upsetting situations.

In 2007, Natalie Evans, who was left infertile by cancer treatment, lost the right to use the frozen embryos that she had created with her former partner. Ms Evans took her case all the way to the European Court of Human Rights, after her former fiancé withdrew his consent to treatment. Whilst the judges recognised the case raised issues “of a morally and ethically delicate nature” and expressed their every sympathy for the situation in which Ms Evans found herself, ultimately, they concluded that her right to become a parent should not take precedence over her former fiancé’s right not to have a child with her. They commented that having a child was a life-long commitment to which both partners should be fully committed. 

What happens to embryos or donor gametes held in storage?

Embryos may be created with the couple’s own gametes, or with donated eggs, or sperm, or both. Alternatively, the couple may have stored sperm or donor eggs to use to conceive a genetically matched sibling for an existing child.

Couples are often surprised to note that the court approaches embryos and gametes differently from the other assets of the relationship, such as the family home. They are not owned by the couple and possession is not transferred from one spouse to the other upon divorce. It is therefore imperative that the issue of what should happen to any embryos or gametes is considered and resolved as part of the separation process.

As highlighted above, where embryos are held in storage which have been created using both partners’ gametes, the clinic can only continue to store them with the consent of both partners. If therefore, the couple decides to separate following treatment, it is open to either partner to request in writing that the embryos be destroyed. Such a request can be made at any time, but often the trigger for such a request is the breakdown of the relationship. 

If the clinic is in the UK, it has to comply with a set of statutory procedure rules and is obliged to notify the other partner of the withdrawal of consent. There then follows a 12 month “cooling off” period during which time the embryos will continue to be stored but cannot be used by either partner. This provides both partners with an opportunity to discuss matters and try and reach agreement as to the best way forward, before irreversible steps are taken. It is not uncommon for one partner to wish to bring an end to the process once the relationship has broken down. However, the other partner may wish to retain the embryos so that they can be used at some point in the future. This can lead to an irreconcilable conflict and if the partner withdrawing their consent does not have a change of heart during the cooling-off period, once this 12-month period has elapsed, the embryos must be destroyed. Clearly, this was not the outcome envisaged by either partner at the outset of treatment and regardless of which partner decided to withdraw consent, it can be a highly emotive time for all involved.

On occasion, the parties may decide to proceed with treatment even though they are no longer together as a couple. In such circumstances, it is important that both parties give considerable thought to the legal and practicable implications of using the embryo.

The rules differ slightly where the embryos are created using donor eggs or sperm. In such circumstances, only the gamete provider has the formal legal right to withdraw consent to storage. That being said, the clinic must still notify the other partner that consent has been withdrawn and the 12-month cooling-off period still applies. 

The position in relation to stored embryos or gametes is complicated further where neither partner is a gamete provider. It may be, for example, that a lesbian couple may retain donor sperm in storage with a view to one or either of them carrying a future pregnancy. If they then separate, difficult decisions will need to be made such as which partner should be permitted to use the donor sperm and whose permission is needed. Unfortunately, the law in this area is not particularly clear or helpful and clinics need to decide how to proceed on a case-by-case basis. Various factors will come into play in this decision-making process including:

• The welfare of the child who will be borne
• Ethics
• Any contractual agreements in existence

If, however, the embryos are stored outside of the UK, where foreign laws may also apply, and if the partner who wants to destroy the embryos is not a genetic contributor, or neither partner can establish a genetic link (e.g. lesbian couples with donor sperm), no formal process applies. 

The importance of being proactive

Ideally, both partners should talk about what might happen in the unhappy event that their relationship does not survive the treatment process. They should also consider other options such as egg freezing. This would allow a female partner an alternative route to parenthood in the event that her male partner subsequently withdraws his consent. In such circumstances, she could then have her unfertilised eggs fertilised by the sperm of another partner, or donor.

In the event that a relationship does break down following IVF treatment, both partners should be encouraged to grasp the nettle at an early stage and try and achieve a resolution which is palatable to them both, so as to try and avoid a drawn-out acrimonious dispute. Obviously in these situations, time is of the essence, as once the embryos or gametes have been destroyed, they are gone forever. It is therefore advisable to take a proactive stance from the outset and engage in constructive discussions. It is also important to keep the storing clinic updated as to the position so as to avoid one partner using the embryos against the other’s wishes.

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