During fertility treatment patients create multiple embryos, freezing some for later use. Once their family is complete, it can be difficult to know what to do with those embryos, those ‘potential children’ that were created with love and hope.
The first option is to do nothing. Every year you will get a notification from your clinic to pay the next year’s storage fees and every 10 years you’ll be asked to re-consent to storage.
Donating to research or training is another option. There are no eligibility requirements which the gamete providers must meet to be able to donate. However, it is not straightforward to donate to research as it will depend on whether your clinic is associated with a specific research project. Consideration is currently being given to the creation of an ‘embryo bank’ for patients to donate to centrally, which research projects could then benefit from.
Donating embryos to another couple or single person
Donation to another couple who are struggling to conceive with their own gametes can be the right option for some couples who wish to help others. This option does come with some eligibility criteria: the egg donor must be aged between 18 – 35 at the time of the embryo creation and the sperm donor aged between 18 – 45. Further screening will also be required. The appropriate consent forms will need to be completed and implications counselling undertaken. The clinic will then ‘match’ the donated embryo to a recipient following the recipient’s requested criteria.
Following the change in donor anonymity laws in April 2005, all donor conceived children are entitled to obtain identifying information about their donor from the age of 18, the first cohort of whom turned 18 in 2023. Donors themselves are entitled to know whether any children have been born from their donation, how many children have been born, their gender and their year of birth. The law change in April 2005 was not retrospective, so those conceived before that date do not have the same right to access that information, although earlier donors can choose to become identifiable.
Legal Parentage
When donating embryos, it is also important to consider legal parentage. There will never be an issue for the egg donor of the donated embryo as the recipient woman who gives birth will be the legal mother. If the recipient woman is in a relationship with another man or woman but not married or in a civil partnership, they will be required to complete the relevant consent to parenthood forms so that they can be recognised as the second legal parent. If they are married or in a civil partnership, then the spouse/civil partner will automatically be the father or the second female parent. In these scenarios, therefore, the donating couple have no concerns that they would be the legal parents of any child born from the donated embryo.
There is, however, a legal lacuna when it comes to donating embryos to a single woman and concerns, therefore, that the sperm provider of the donated embryo could be considered the child’s legal father. The Human Fertilisation and Embryology Authority (HFEA) advises patients to take legal advice in this situation; however, the law is not clear cut.
Whilst the Human Fertilisation and Embryology Act 2008 specifically provides for the prevention of a father’s legal parentage where he has donated sperm via a licensed clinic (s41(1)), the Act is silent in respect of donated embryos. As such, it’s likely that the sperm provider of the donated embryo would be considered the legal father, although of course the recipient mother would not know who that person is and the sperm provider won’t know that the recipient mother is a single woman (unless this is a known donation situation).
To avoid this scenario, the donating couple may wish to stipulate that their embryo must not be donated to a single woman. However, this would not be permitted as this discriminates against single women and would fall foul of equality laws.
What are the risks?
Assuming the child knows they are donor conceived, from age 18 they would be able to apply to the HFEA for identifying information about their donors. With this information the now adult donor conceived person could make an application for a declaration of parentage to have their biological father declared as their natural and legal parent and for their birth to be re-registered. Declarations of parentage have implications in respect of inheritance and nationality.
A legal parent has financial responsibility for a child during its minority. Should the donor conceived person discover the identity of their embryo donors before turning 18, for example through direct-to-consumer DNA testing, such an application for a declaration of parentage could be brought before age 18, resulting in the sperm donor potentially being liable for child maintenance if he is declared by a court as the legal father and the mother makes such an application.
To date, there have been no applications brought for declarations of parentage by any (adult) children born to a single woman from a donated embryo, so far as the author is aware. This could be an issue for the future as we are seeing an increase in solo mothers by choice creating families through donor conception and more DC people knowing their biological origins. However, one would expect that robust arguments would be made on behalf of the previously unknown sperm donor for protection from legal parenthood following donating embryos as there is for men donating sperm.
With the HFEA looking to update the provisions of the Act, consideration should be given to this situation in respect of any proposed changes to the law, so that the law clarifies that protection from legal parenthood through sperm donation through a clinic is explicitly extended to include embryo donation, so that patients who wish to donate their embryos can do so without any fear associated with donating to single women.
It is also worth noting that a recipient of donated embryos who later decides to have treatment abroad, either via a surrogate or in their own treatment, will need to seek consent from the gamete providers to export those donated embryos and for consent to use with a surrogate. Having donated embryos, therefore, a donor may be asked for further consents in the future. Donors can withdraw consent up to the point of embryo transfer.
Natalie Sutherland is a Partner at the International Family Law Group.
