I-24: Consents and Contracts for Embryo Cryopreservation

Background: Couples receiving IVF treatment may choose to have embryos frozen, with the aim of creating a pregnancy and ultimately a live birth in future. Problems can arise when couples separate. Under UK law, embryos can only be transferred with the consent of both genetic parents. The issue came to public prominence in the case of Natallie Evans, who lost the opportunity to have her own genetic children after her relationship ended and her partner withdrew consent for embryo storage. Additional issues arise where one of the genetic parents is a gamete donor, or has died or become incapacitated. This study examines the current consent laws in the UK, and explains the possible case for changes that would allow couples a choice of consent agreements. Materials and Methods: A possible change in the law, to give couples increased flexibility in their consent agreements, is considered. One type of agreement would be as at present, allowing either genetic parent to withdraw consent at any time before embryo transfer. The other type of agreement would involve one member of the couple signing away the right to withdraw consent, so that their partner would have control over the embryo. The couple would then decide between themselves which type of consent agreement to sign. The benefits of and possible objections to this change in the law are analysed according to philosophical and legal principles.Results: The proposed change in the law may directly benefit both members of a couple in a situation where they would not create frozen embryos together under the current law but would do so under the proposed new law. For example, a woman in the position of losing her fertility to urgent medical treatment may be unwilling to have embryos created with her partner and frozen if the man retains the right to withdraw consent at a later date. It is then in the man’s interests to be able to sign away the right to later withdraw consent. More generally, the change gives couples more autonomy by allowing them a choice, and does not remove any option currently open to them. It might be particularly suitable for gamete donors, because withdrawal of consent by a gamete donor, though rare, has serious impact upon recipients. Possible objections to change take three main forms: (i) concern about the welfare of a child born to parents who have separated; (ii) concern about any broader costs tosociety from the birth of such children; and (iii) concern that a genetic parent who signed away his or her right to withdraw consent would be the victim of an unfair contract. It is shown that the first objection would imply that a baby born to parents not together has a life not worth living; this seems absurd and also conflicts with the general principle under English law that ’wrongful life’ is not recognised. Both (i) and (ii) conflict with the legality and practice of offering fertility treatment to single women in the UK, and the removal of the ’need for a father’ in the UK Human Fertilisation and Embryology Act 2008, instead requiring ’supportive parenting’. For (iii), it is generally accepted that a necessary condition for a contract to be unfair is that the wronged person is either likely to be in an unfit state of mind or has insufficient information at the time of signing the contract. Thorough counselling, with mandatory individual counselling for each partner, may answer possible concerns about unfair contracts. Some practical considerations remain, such as the time periods over which embryos can be used under different consent agreements.Conclusion: There is a strong case for revising the law to allow a choice of consent agreements when patients opt to have embryos frozen. Robust consent-advisory procedures will be needed, helping couples to think through their consent decisions more thoroughly than at present.