What happens to our frozen embryos when we divorce?
The number of couples who are deciding to freeze their embryos for personal and medical reasons is ever increasing. As a result, the Human Fertility and Embryology Act was put into force to police this modern innovation, but this new law has some deep flaws which are yet to be resolved.
In particular, what happens to these frozen embryos when the couple that made them decides to divorce?
How long can I store my embryos?
Embryos can be stored for up to 10 years, after which if they have been unused, they must be destroyed (an additional two years of storage was allowed due to the disruption caused by Coronavirus). This limit can also be extended for up to 55 years for individuals who can demonstrate a medical need for prolonged storage.
Does my partner need my consent to store / use the embryo?
Currently, a frozen embryo can only continue to be stored or used in treatment with the consent of both parties. Once the consent of both parties is given, either party is legally entitled to withdraw their individual consent at any time.
However, the withdrawal of consent triggers a 12-month ‘cooling-off’ period, during which the consent of both parties must be given in order for storage of the embryos to continue and consequently any possible use of the embryos in treatment. If both parties do not give their consent within this 12-month period, the embryos will be destroyed. Overall, the entire process of the storage and use of frozen embryos surrounds the consent on both parties involved.
Understandably, this matter is an emotional one for individuals who may see these embryos as their last chance to become a biological parent, despite the breakdown their relationship. Given the historical controversy of the ‘pro-life’ versus ‘pro-choice’ argument, it is shocking to note that, when it comes to frozen embryos, the right to life of the embryo and the right to a family life does not outweigh either of the parties’ right to withdraw their consent.
How can I protect my embryos if I divorce?
In light of these circumstances, some couples try to negotiate the continued storage of these embryos and even agree to sign away the possibility of making any financial claims on any children.
However, even these agreements are certainly not simple and more importantly, not legally binding. With this in mind, we would encourage anyone who is contemplating freezing their eggs to consider their legal position in order to avoid disappointment should their relationship break down during this 10-year period of storage.
The Family Team at Mayo Wynne Baxter is prepared to support the modern family through these issues with personal, but pragmatic legal advice. With the leadership of Resolution member, Grant Parker, we encourage our clients, where appropriate, to have amicable and calm conversations to reach an agreement that both parties are happy with.