What should happen to a couple’s embryos after they split up?
Updated: Sep 9, 2020
Each year, an increasing number of New Zealand couples are undergoing IVF treatment in the hope of becoming parents.
For some, it goes well, but others aren't so lucky. It can be a stressful and lengthy process lasting several months, or even years, that ultimately isn't successful. Some couples may spilt up and put a halt to treatment before a child is conceived.
The kicker is, these separated couples may have unused frozen embryos in storage. Depending on the woman's age or any existing fertility issues, these may provide her with her last chance of having her own genetic children.
So what happens if she wants to use them but her ex-partner doesn't?
Dr John Peek of Fertility Associates says this is an emerging issue in New Zealand as a number of clients have split and then found themselves in a legal grey zone. As a result, the New Zealand Advisory Committee on Assisted Reproductive Technology is currently preparing advice on appropriate law changes for the Minister of Health in order to provide some clarity.
The Committee often looks at legal developments in other countries before providing advice on complex issues such as this, and may start with the UK.
Separated couple Natallie Evans and Howard Johnston couldn't agree on what to do with their embryos post split and became embroiled in the most high profile case to date. Their lengthy legal battle lasting five years began in the British legal system and after four appeals was ultimately settled in the European Court of Human Rights.
Evans, who had major fertility issues as a result of undergoing treatment for ovarian cancer, argued that because the embryos provided her with her last chance of having her own genetic children she should be able to use them.
In other words, her right to become a mother should trump her ex-partner's right not to be forced into becoming a father.
In response, Johnston argued that he only consented to the use of the embryos while he was in a relationship with Evans and since they had separated, she should not be able to use them.
To complicate matters, several years had passed by the time of the final appeal and Johnston was in a new relationship with a different woman.
In a split decision, five of the seven Judges ruled in Johnston's favour and ordered that the embryos be destroyed. They expressed great sympathy for Evans but concluded that the couple had only consented to IVF treatment together as a couple on the relevant forms they signed – nothing more – and since they had separated Evans could not use the embryos.
The Judges also concluded that neither men nor women should be forced into parenthood and in the reverse situation where a male ex-partner wanted to use embryos, they would have reached the same conclusion.
This landmark case set a precedent in the UK and most of Europe. In other countries, such as the United States, it remains a contested issue. Courts in some states have followed the UK approach but others have allowed the women involved to use the contested embryos.
The facts of these cases vary widely – in some the women did not have fertility issues as the result of cancer treatment like Evans, but rather had fertility issues due to their age. As with Evans, they did not regard adoption or having a child with an egg donor as appealing equivalent alternatives.
Celebrities have also found themselves tangled in disputes over embryos.
Actress Sofia Vergara and her ex-fiancée, businessman Nick Loeb, are in an ongoing legal battle over their last two frozen embryos which they originally planned to have implanted into a surrogate.
In an open letter to the New York Times in August last year, Loeb wrote that he was desperate to become a parent and regarded the two female embryos as his unborn children. Due to his religious beliefs, he does not want them to be destroyed or stored in a freezer forever.
Vergara has since married actor Joe Manganiello and is standing firm in her view that Loeb should not be able to use the embryos.
Closer to home, we could take the all or nothing approach and ban the use of remaining embryos if one ex-partner won't consent, or allow it.
Another option could be to let one ex-partner use the embryos but on the basis that the other ex-partner is treated as if they were a sperm or egg donor. In other words, they would have no financial responsibility towards the child and no parental rights to access, unless a voluntary arrangement could be reached.
In any case, the child would have the right to find out the identity of the person if they wanted to once they turned 18.
No matter what we decide, New Zealand couples thinking about undergoing IVF, or currently going through it, need to have a very honest conversation about should happen to the embryos if they did split. Like conversations about pre-nups, this sort of conversation may be equally uncomfortable and revealing, but at the end of the day honesty is arguably the best policy.
This article was also published on stuff.co.nz