Frozen embryos – the risks and the rewards

The Government recently announced plans to extend the storage limit for embryos and gametes (sperm and eggs) from 10 to 55 years for everyone, abolishing the arbitrary differentiation between freezing for health and social reasons. While this is a welcome development which provides greater reproductive choices for fertility patients, those with frozen embryos face potentially more complex scenarios than simply reaching the statutory storage limit.

Couples often choose to freeze embryos rather than individual gametes because it increases the chance of live births. Those undergoing IVF treatment will aim to create several viable embryos to maximise the possibility of conceiving. After a fresh embryo transfer, surplus embryos can be frozen for use later, usually to create siblings.

However, once the genetic material of two people is permanently joined, any decisions regarding surplus embryos must be agreed. This can create a conundrum, particularly if one party changes their mind or a couple splits up. There are essentially four options: (1) donate those embryos to another couple or individual; (2) donate them for research or training purposes; (3) delay the decision indefinitely; or (4) destroy them.

Donation to individuals or a couple

Donating embryos may be the ultimate altruistic act but it requires careful consideration and, ideally, counselling.

In the UK, donation is not fully anonymous and must also meet eligibility criteria (egg donor aged 18-35 and sperm donor aged 18-45, plus health screening). Any resultant child will be entitled to receive non-identifying information about their donor(s) at 16 and identifying information at 18. Embryo donors are entitled to know how many children are born from their donation, their sex and year of birth.

Parties who agree to donate their surplus embryos must be prepared for the result that their genetic offspring may be born and raised outside their family unit. They must consider carefully whether to tell their own children they may have full biological siblings whom they may never know unless the recipient parents also tell their children they are donor conceived (it is not mandatory) and those children seek out the donors.

Donate to scientific research or training

One way to avoid these complex emotional issues is to donate to medical research. However, whilst there are no specific eligibility criteria to donate to science (unlike when donating to an individual or couple), a specific research project must be chosen.

Delay or Destroy

Some couples will simply keep the embryos frozen, paying annual storage fees until the statutory time limit is reached. However, delaying the decision can store up future problems. Other couples may choose to destroy surplus embryos, which means allowing them to thaw and perish naturally.

The law

The cornerstone of the law – set out in Schedule 3 of the Human Fertilisation and Embryology Act 1990 as amended by the Human Fertilisation and Embryology Act 2008 – is consent. Both egg and sperm providers must give signed, written consent to the creation of embryos, their storage and any resultant treatment using those embryos.

The consent form may stipulate strict conditions as to how the embryo is to be used. It must specify the maximum period of storage (if less than the statutory period) and what should be done with the embryo(s) if a person who gives consent dies or subsequently lacks capacity to vary or withdraw their consent.

Consent can be varied or withdrawn by either party at any point before the embryo is placed inside a woman or donated for research. Any variation or withdrawal must also be in writing with a signature and the clinic must notify all interested persons.

If consent is withdrawn, continued storage of that embryo does, however, remain lawful for a cooling-off period of 12 months. During this time, the embryo cannot be used and if the person who withdraws their consent does not change their mind, the embryo must be destroyed.

The risks of having stored embryos

Life can change whilst undergoing fertility treatment and where the gamete providers of stored embryos disagree on what should happen to that genetic material, the consequences can be devastating.

Divorce and separation

If couples who create embryos together split up, consideration must be given to what will happen to those embryos. If one party is happy to allow the other to use the embryo to hopefully create a child, they must both take legal advice to ensure that legal parenthood, any financial obligations and contact issues are dealt with before embryo transfer.

If, however, an individual does not want a child to be conceived using the embryo created with their ex, the UK court is powerless to override their withdrawal of consent.

This happened in the 2007 UK case of Natallie and Howard Evans. Natallie froze several embryos fertilised with Howard’s sperm before undergoing treatment for ovarian cancer. However, the couple broke up and Howard withdrew his consent to Natallie using those embryos, so she took the matter all the way to the European Court of Human Rights. She lost her case so appealed to the Grand Chamber of the European Court under three articles of the European Convention of Human Rights. The court found no violation of Articles 2 (right to life), 8 (right to respect for family life) or 14 (prohibition of discrimination). Natallie’s right to become a parent in the genetic sense did not deserve greater respect than Howard’s right not to have a child with her. Ultimately, the embryos were destroyed, and along with it, Natallie’s only chance at having biological children.

While the law in the UK is clear, in the US it varies from state to state. The 2012 Pennsylvania case of Reber v Reiss is similar to the Evans case but had the opposite result. Here, the husband and wife’s embryos were frozen before the wife’s cancer treatment. They split up, with the husband subsequently having children with a new partner. He then filed for divorce and wanted the embryos destroyed. As part of the divorce, the embryos were considered marital property subject to equitable distribution. At the first hearing, the court used the “balancing approach” test and found that the wife’s inability to achieve biological parenthood without using the embryos was an interest that outweighed the husband’s desire to avoid procreation, so the embryos were awarded to her. The husband appealed. Because the husband and wife never made an agreement before undergoing IVF and these embryos were likely the wife’s only opportunity to achieve biological parenthood, the Court of Appeals agreed with the trial court and awarded the embryos to the wife.

In the 2016 Illinois case of Szafranski v Dunston, the parties were unmarried and had only been dating for five months when Karla Dunston asked Jacob Szafranski to create embryos for freezing before she underwent cancer treatment. They signed a consent form with the clinic that stated neither could use the embryos without both parties’ consent, later instructing an attorney to draw up a contract giving Dunston sole control of the embryos, but this was never signed. Szafranksi broke up with Dunston and withdrew his consent to her using the embryos, saying he had the right not to be a father, so she took the matter to court.

At first instance, the balancing approach was used, with the court finding that Dunston’s interest in the embryos was superior to his interest in not using them. Szafranski appealed. The Court of Appeals used a hybrid approach that gave priority to any contract but considered the balancing approach in the absence of a clear verbal or written agreement. The case was sent back to the trial court, which found that the earlier oral agreement to create the embryos constituted an oral contract and rejected Szafranski’s arguments that the consent document signed with the clinic modified or superseded this. The Court of Appeals affirmed this decision. Szafranski appealed to the Supreme Court, which refused to hear the case, so the Court of Appeals’ decision stood, and Dunstan could use the embryos.

By contrast, in the 2020 Arizona case of Ruby Torres v John Terrell – also involving frozen embryos due to cancer treatment – an agreement signed at the clinic stated that the embryos would be donated absent an agreement as to the use by one of them. When the parties divorced in 2017, the wife wanted to use the embryos as her only chance of having biological children, but the husband wanted to donate them per the agreement. At first instance the court held that his interest in not being a parent outweighed her claim to the embryos and ordered that the embryos be donated. In reaching this decision the court had found that the wife would be able to become a parent through normal means, even though the evidence said she had a less than 1% chance. The wife appealed. The Court of Appeals found the contract lacking in clarity and turned to the balancing approach. It further held that the trial court had overstated the wife’s ability to become a parent through other means and given insufficient weight to her desire to have a biologically related child, so awarded the embryos to the wife. The husband took the matter to the Supreme Court, which affirmed the first instance decision based on the law of contract (disagreeing with the Court of Appeals as to the contract lacking sufficient clarity), rather than the balance of interests, and ordered the embryos to be donated.

The competing rights of gamete providers regarding embryo disposition was considered again in a high-profile case involving actress Sofia Vergara and her ex-fiancé Nick Loeb. In 2013 the couple created embryos together and stored them for later use. The contract signed with the clinic stated that neither party could use the embryos without the other’s consent. In 2014, after they split up, Loeb filed a lawsuit in California, seeking full custody of the embryos so that he could bring the embryos to term using a surrogate. He stated that Vergara would essentially be the egg donor and he would not seek financial support from her.

This initial action was withdrawn by Loeb but in 2016, he created a Trust in Louisiana which he modified to benefit Emma and Isabella, the names he had given to the two female embryos, before filing a lawsuit in Louisiana on behalf of the embryos through the Trust. In Louisiana, embryos are considered persons whereas they are considered property in California, and so essentially the embryos were suing Vergara. That action, however, was dismissed for lack of personal jurisdiction.

Undeterred, Loeb filed again in Louisiana, this time in federal district court. He failed again. Loeb was unable to prove that he and the embryos were domiciled in Louisiana, had a residence in Louisiana or the intention to reside there. In January 2021, a scathing judgment accused Loeb and his attorney of blatant forum shopping and making a mockery of the Louisiana legal system.

Vergara was eventually successful in her own action in California when an injunction was granted in March 2021. The terms of the contract entered into by the parties at the time of creating and storing the embryos prevailed, illustrating the importance of considering, at the outset, what you would like to happen to embryos in the event of disagreement.

What’s the solution?

Dealing with assisted reproductive technologies involves many ethical, legal and social considerations. No one can predict the future, so it is important to actively think about the what-ifs.

Whilst freezing embryos can be the better option, consider also freezing individual gametes. This will give greater control over genetic material and provide a safety net in case a partner or donor withdraws consent.

Before freezing embryos, consider taking separate legal advice. It is vital that both parties understand the implications of what the clinic asks them to sign because, ultimately, they may have competing future interests. Certainly, if circumstances change, individuals with frozen embryos should seek legal advice as to whether consent forms need to be updated.

Check and recheck the paperwork. Ask questions if you do not understand something. Intentions should be clearly articulated and unambiguous. Whilst in the UK consent is not contractual as it can be withdrawn prior to implantation, consider anyway drawing up a separate document, outside of the clinic forms, to cover all bases. Clinics have made mistakes on the forms with serious consequences, and it is important to formalise agreements properly. Keep a copy of all the signed consent forms and do not rely solely on clinics filing or retaining this information.

Take advantage of the implications counselling which fertility clinics are obliged to offer by law, whereby fertility and genetic counsellors help you to understand the various scenarios, work through your feelings and reach the many decisions you will be asked to make in assisted reproduction.

Finally, ensure that you consider what you would want to happen to your genetic material, including any embryos, upon your death. This should be clearly set out in writing both with the clinic and in a properly executed will.

Natalie Sutherland, Partner at Burgess Mee Family Law and Trustee of Progress Educational Trust