What happens when a couple with frozen embryos divorces?

NGA_Stock_234In a recent Californian case, a judge ordered that a divorced couple’s frozen embryos should be destroyed. The embryos were created after the ex-wife, Lee’s, diagnosis of breast cancer, as following her treatment, it would be very difficult for her to conceive naturally.

Following their separation, Lee wanted to use the embryos to become pregnant, but her ex-husband, Findley, refused and asked for the embryos to be destroyed. He was concerned that if Lee were to have children using their embryos, she might try to seek financial support from him. Lee argued that since her cancer treatment had meant that she was very unlikely to be able to conceive naturally, the embryos represented her only chance for having biological children of her own. The judge decided that the couple should be held to the terms of the consent form which they had signed before the embryos were created, which said that if they were to divorce, the embryos should be destroyed.

The case has been causing a lot of discussion in the US, but how would things work in the UK?  Would the court here take the same approach?

Ultimately yes, although with a very different legal approach.  In California, the law looks to what the parties agreed when the embryos were created and, as this case shows, holds them to that even if they change their minds later. What was agreed at the start, it seems, will be given significant weight.

In the UK, the law in relation to stored embryos is very different, resting on consent rather than agreement.  Both the egg and sperm provider must give written consent to the storage and use of their embryos, and they can vary or withdraw their consent at any time, as long as the embryos have not yet been placed inside a woman.  That means, in effect, that if a couple has embryo in storage, either party can ask for the embryos to be destroyed.  A 12 month cooling off period then kicks in (during which the embryos cannot be used), but after that the embryos must be destroyed if the party who withdrew consent has not changed their mind.   What was agreed at the start is irrelevant.

If this case had happened in the UK the ex-husband would therefore have been entitled to request the destruction of the embryos, and ultimately, unless he changed his mind during the cooling off period, his wishes would have been carried out.  In California, the outcome was ultimately the same, although for a different reason – because this is what both parties had agreed at the start.

You can find out more about consent law in relation to embryos from our Knowledge Centre

If you are affected by these issues and would like some advice, please don’t hesitate to get in touch with us on +44 (0)20 3701 5915.

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