Our Modern Family team outlines the key points separating couples need to consider.
- Dealing with frozen embryos on separation and divorce is a complex area of law.
- It can also be emotionally challenging, particularly for the party wishing to still create a child.
- UK family courts do not consider embryos to be “matrimonial” property – there is, therefore, no power to make orders in relation to them on divorce.
- The consent of both parties is required to store and then use embryos in treatment.
- Frozen embryos can be stored for a total of 55 years – this is dependent upon renewing relevant consents. If a party does not renew consent to storage the embryos will be destroyed.
- It is important to remember that consent for storage and use can be withdrawn by one party at any time.
- After consent is withdrawn, a 12-month cooling-off period is triggered – during which the embryos cannot be used for treatment. If the party withdrawing their consent maintains their stance, notwithstanding the wishes of the other party, the embryos will be destroyed.
- If one party withdraws consent, mediation is an option to see if the parties are able to agree a way forward.
- There are strict rules and regulations regarding exporting embryos from this jurisdiction to another. The clinic would need a license to export them.
- Whilst parties may make post separation agreements in respect of the use of embryos, it is important to take specialist legal advice as the agreement may not be recognised in law and/or there can be important implications in terms of parentage.
- In the event of your death, you can give the clinic consent to store and use embryos by a named partner. In this scenario, the embryos can only be stored for up to 10 years from the date of your death, after which they will be destroyed.
- If you and your partner do not wish to use the embryos, the clinic will discuss options such as donating them for research or allowing them to perish.
For further information, please contact Harriet Errington, Partner and modern family law specialist lawyer in the Payne Hicks Beach Family Department and or alternatively, telephone on 020 7465 4300.
To learn more about Modern Family Law, visit our dedicated webpage and download a free copy of our Essential Guide to Modern Family here.
To learn more about Divorce and Separation, you can download a free copy of our Essential Guide to Divorce and Family Law here.
