Fertility treatment and consent

For many people, the road leading up to fertility treatment is not easy and once you have started treatment there may be difficult decisions ahead. Some areas of fertility treatment give rise to potentially complicated legal questions about consent. Depending on your situation, these questions may be straight-forward or they may require challenging conversations. It is therefore important to ensure that you have a full understanding of what consent means and the legal implications of your decisions in order to make informed choices. This will help ensure that treatment proceeds as smoothly as possible.

What is consent and why is it important?

A central concept within fertility treatment is “consent”. Consent is when a person voluntarily gives their agreement to do something or to allow something to happen. Consent can be evidenced through written agreements, such as by completing forms at your chosen fertility clinic, but it can also be shown through your actions and behaviour.

Before treatment can proceed, you will likely be asked to give your consent to the following:

• The identity of the legal parents of the child
• The use and storage of your eggs, sperm or embryos
• The handling of your eggs, sperm or embryos in the event that you or your partner pass away during the course of treatment

Consent is important to ensuring that your treatment is able to proceed in the way you have planned for and that you have control over how your eggs, sperm or embryos are used both now or in the future as you would wish. There is also a risk that if appropriate consents are not given, the treatment may not be able to proceed at all and the eggs, sperm or embryos may be destroyed. Furthermore, mistakes involving consent to the identity of the legal parents of the child can lead to unanticipated Court proceedings following the child’s birth.

What happens if I want to withdraw or vary my consent?

It is possible for you, your partner or a donor to change their mind and subsequently withdraw or vary their consent up until the point of implantation of the embryo in the womb or insemination using the sperm. Any withdrawal or variation of consent must be in writing and signed by the person changing their consent. The withdrawal of consent can give rise to some particularly difficult and distressing situations, especially in relation to relationship breakdown, and for this reason  it is important to consider all possible eventualities.

Consent and legal parentage of the child

An advantage of using a licensed clinic for fertility treatment is that there are additional options available when determining the legal parenthood for the resulting child, and many of these rely upon the evidenced consent of the parties involved.

Under English law, it is not possible to have more than two legal parents for a child, and it is common practice for fertility clinics to not commence treatment until they are certain of the identity of the legal parents.

Identifying the legal mother

The legal mother of the child at birth is always the gestational parent who gives birth to the child. This is the case even when the gestational parent does not have a genetic connection to the child. At present, there is no mechanism in English law for a pre-birth order to decide that the gestational parent will not be the legal mother upon the birth of the child. This means, for example, that if you are involved in a surrogacy arrangement, the surrogate will be the legal mother of the child at birth and a parental order must be sought post-birth if you wish to amend this.

Identifying the second legal parent

The position is more complicated regarding the second legal parent of the child, and the matter of consent comes to the forefront.

If the gestational parent is married or in a civil partnership at the time of receiving the fertility treatment, then their spouse will automatically be deemed to be the second legal parent of the child unless it is shown that they did not consent to the treatment. This remains the position even if the spouse/civil partner and the gestational parent are separated, but not yet divorced. The matter of non-consent is a complicated area of law, and specialist legal advice is recommended if you seek to rely upon non-consent provisions. It is ultimately decided on the balance of probabilities, which means taking all available evidence into account to decide whether it is more likely that consent was given or whether it is more likely that consent was not given.

If the gestational parent is not married or in a civil partnership, or the spouse/civil partner has provided valid non-consent to treatment, then it is possible for another person to be recognised as the second legal parent to the child, although this is a complicated area of law and specialist legal advice should be sought in relation to your particular circumstances.

Where the gestational parent is seeking treatment using donor sperm then it is possible for another person to be recognised as the second legal parent to the child by virtue of the agreed fatherhood conditions, or the agreed female parenthood conditions. Fulfilment of these conditions relies upon written consent being given both by the legal mother and the intended second parent to their treatment as a legal parent. Furthermore, neither party must have changed their mind and have given written notice that they have withdrawn their consent.

Consent to the use or storage of your eggs, sperm or embryos

Your gametes can only be used for the specific purpose that you have given your consent for. For example, if you have consented to your eggs being used in your own fertility treatment, the clinic cannot then use the eggs for the treatment of another person or for medical research.

By law, treatment can only go ahead if both parties providing the gametes have given their consent and, as stated earlier, it is possible for you, your partner or a donor to change their mind and subsequently withdraw or vary their consent.

In the event that following the creation of an embryo, one of the gamete providers withdraws consent to the continued storage of that embryo, then the law requires the fertility clinic to take all reasonable steps to notify those due to be treated with that embryo. The law allows for the embryo to be stored for 12 months from the date that the centre receives written withdrawal of consent. This 12-month period is commonly referred to as the “cooling off” period.

The need to vary consent may occur if the relationship between you and your partner breaks down prior to the transfer of an embryo. You may both agree that your former partner can use the embryo for treatment on their own or you may not wish for the embryo or gametes to be used by your former partner in future treatment but are willing to donate for use by someone else. These are difficult and emotive issues and the previously provided consents will need to be varied to reflect this. It is important to seek specialist legal advice in a situation like this.

Consent to use your stored eggs, sperm or embryo if you or your partner passes away during the course of treatment

If you want your eggs, sperm or embryos to be used after death, then it is important that all the appropriate consents were given for this. As explained earlier, consent is given for the use of your embryos or gametes for a specific purpose, and it is possible for this purpose to change following the death of one partner. For example, the use of a surrogate may now be necessary if your female partner passed away and the intention had been for her to carry the child. If her gametes were used in the creation of the embryo, then for a surrogacy arrangement to take place she would have needed to consent to this prior to her death. Without the correct consent, the embryos may be destroyed.

There are rare cases, in which it is possible to use eggs, sperm or embryos of somebody who has died without their consent. However, these cases are complicated and must be looked at on an individual basis.

Our family law solicitors support individuals and couples though consent for fertility treatment. We can also advise on all other areas of family law, including co-parenting agreements and dispute resolution. Please contact us for more information about how we can support you.