What is a frozen embryo?

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.

I would like my ex to be able to use our embryos, but I don’t want to be a legal parent. What can be done?

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.

What if my ex does not inform the clinic of our separation?

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.

What if our embryos are stored overseas?

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.

Can I export my embryos stored in a UK clinic to a country which will let me use them?

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 my ex says they will not agree to me using the embryos in future treatment, is there anything that can be done?

While the law in the UK is strict around the requirement for consent, for most couples this is an issue of great significance. Our family lawyers can explore through negotiation or mediation whether there is any scope for an agreement to be reached.

What happens to our embryos if we don’t use them?

This should be something your clinic discusses with you. There are various options including donating them to someone else, donating them to research or training, or agreeing to them being destroyed.

What happens to our embryos if one of us dies?

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 is therefore important that you discuss posthumous use with your clinic.

How long can my embryos be used and stored for in the event of my death?

If you consent to your embryos being used for treatment after your death, the law allows the embryos to be stored for your named partner’s use for up to 10 years from the date of your death. You must consent to both the use and storage of your embryos continuing after death. This storage period cannot be extended although you can shorten it. If your named partner does not use the embryos, the embryos will be destroyed.

What if one of us changes our mind about using or donating embryos?

You and your partner can vary or withdraw your consent at any time before the embryos are used in treatment or research. If your partner withdraws their consent then your embryos cannot be used in treatment. If one person withdraws their consent then there will be a 12-month “cooling-off” period. If after this time your partner still doesn’t want the embryos to be used, they’ll be destroyed.

We stored our embryos before 1 July 2022. Do we need to do anything now?

If you stored your embryos before 1 July 2022 for up to 10 years but would like to store for longer (up to a maximum of 55 years from the date that the embryos were first placed in storage), you should contact your clinic to discuss whether this is possible and complete any additional consent forms where necessary.

Can I withdraw my consent to the embryos being used?

Yes you can, providing the embryos haven’t already been used in treatment. Even if you’ve already created an embryo, you can withdraw your consent at any point up until it’s transferred to the womb. If this is something you are thinking about doing, remember that it is important to deal with this in an as constructive and non-confrontational manner as possible.

What happens if I do not renew my consent to storage?

If you do not renew your consent to store your embryos, the embryos will be destroyed. It’s important you keep your clinic informed of any changes to your contact details so they can let you know when your consent to storage needs to be renewed.

Embryos on separation

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

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 is 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.

Our lawyers

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.

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 is important to deal with these issues as early as possible following separation and in a constructive and non-confrontational manner

Colin Rogerson

Head of Fertility Law
Colin Rogerson

Head of Fertility Law

+(44)(0) 3443 260203

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Rose-Marie Drury

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Rose-Marie Drury

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+(44)(0) 3443 276257

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Frequently Asked Questions

What is a frozen embryo?

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.
I would like my ex to be able to use our embryos, but I don’t want to be a legal parent. What can be done?

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.
What if my ex does not inform the clinic of our separation?

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.
What if our embryos are stored overseas?

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.
Can I export my embryos stored in a UK clinic to a country which will let me use them?

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 my ex says they will not agree to me using the embryos in future treatment, is there anything that can be done?

While the law in the UK is strict around the requirement for consent, for most couples this is an issue of great significance. Our family lawyers can explore through negotiation or mediation whether there is any scope for an agreement to be reached.
What happens to our embryos if we don’t use them?

This should be something your clinic discusses with you. There are various options including donating them to someone else, donating them to research or training, or agreeing to them being destroyed.
What happens to our embryos if one of us dies?

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 is therefore important that you discuss posthumous use with your clinic.
How long can my embryos be used and stored for in the event of my death?

If you consent to your embryos being used for treatment after your death, the law allows the embryos to be stored for your named partner’s use for up to 10 years from the date of your death. You must consent to both the use and storage of your embryos continuing after death. This storage period cannot be extended although you can shorten it. If your named partner does not use the embryos, the embryos will be destroyed.
What if one of us changes our mind about using or donating embryos?

You and your partner can vary or withdraw your consent at any time before the embryos are used in treatment or research. If your partner withdraws their consent then your embryos cannot be used in treatment. If one person withdraws their consent then there will be a 12-month “cooling-off” period. If after this time your partner still doesn’t want the embryos to be used, they’ll be destroyed.
We stored our embryos before 1 July 2022. Do we need to do anything now?

If you stored your embryos before 1 July 2022 for up to 10 years but would like to store for longer (up to a maximum of 55 years from the date that the embryos were first placed in storage), you should contact your clinic to discuss whether this is possible and complete any additional consent forms where necessary.
Can I withdraw my consent to the embryos being used?

Yes you can, providing the embryos haven’t already been used in treatment. Even if you’ve already created an embryo, you can withdraw your consent at any point up until it’s transferred to the womb. If this is something you are thinking about doing, remember that it is important to deal with this in an as constructive and non-confrontational manner as possible.
What happens if I do not renew my consent to storage?

If you do not renew your consent to store your embryos, the embryos will be destroyed. It’s important you keep your clinic informed of any changes to your contact details so they can let you know when your consent to storage needs to be renewed.

Frozen embryos in a divorce

Embryos on separation

Our lawyers

What you need to know

Your main contacts

Colin Rogerson

Colin Rogerson

Contact Colin Rogerson

Rose-Marie Drury

Rose-Marie Drury

Contact Rose-Marie Drury

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