Consent to treatment and storage
You must consent to your eggs, sperm or embryos being used in treatment, stored, or donated to another person or to a research project.
The law allows you to specify any conditions that you wish when giving consent, and those conditions must be followed.
What form must consent take?
Consent must be given in writing and must be signed (although there are some special rules which allow a person who is mentally capable but physically incapacitated to ask someone else to sign for them). In practice, you would normally confirm your consent by completing an HFEA form at your clinic, although consent would be equally valid in another written form (such as a letter).
Before giving consent, you must have been offered counselling and given proper information about the implications of your treatment or of donation.
Exceptions to the consent requirement
As from 1 October 2009, there are some very particular exceptional circumstances in which eggs, sperm or embryos can be stored without consent:
Children - Eggs or sperm from a child can be stored without consent if he/she is about to undergo medical treatment that will impair his/her fertility. A doctor must certify that storage is in his/her best interests.
Adults - Eggs or sperm from an adult can be stored without consent if a person is temporarily mentally incapacitated (for example after an accident) and expected to undergo medical treatment that will significantly impair his/ her fertility. Again, a doctor must certify that storage is in his/her best interests.
In both cases, the eggs or sperm can only be stored; they cannot be used in treatment unless the person becomes capable and gives consent. The rules also do not allow gametes to be stored after someone’s death.
Consent may also be given on behalf of a child or a person without capacity to create an embryo for research purposes in certain specified circumstances.
Withdrawal or variation of consent
You can vary or withdraw your consent simply by giving notice in writing and signed to the person keeping your gametes or embryos.
Consent can be withdrawn at any time before your gametes or embryos are ‘used’ (which means being placed in the body of a woman or being used for research).
Consent in relation to embryos
In relation to embryos, the right to withdraw consent belongs to each gamete provider (including donors). This means that either can ask for the embryo to be destroyed.
In a landmark legal battle, Natalie Evans fought against the destruction of her embryos after her former partner withdrew his consent to storage. The court decided that English law did not infringe her human rights in requiring the destruction of her embryos.
Although she lost her fight, Natalie Evans’ story prompted some changes to the law during the passage of the Human Fertilisation and Embryology Act 2008. Most notably, fertility clinics must now follow a strict procedure where an embryo is in storage and one of the gamete providers withdraws consent to storage. The person keeping the embryo must, instead of destroying the embryo immediately, take all reasonable steps to notify everyone the embryo was to be ‘used in treatment’ for. The people to be notified include the other gamete provider where an embryo was created for his or her use or (in donation cases) the intended recipients, even though these people will not have a genetic stake in the embryo. A sperm or egg donor who is a gamete provider but does not intend to be a parent will not need to be notified if the other gamete provider withdraws consent.
Storage of the embryo then remains lawful for 12 months, although it cannot be used in treatment during this time unless both gamete providers consent. If all the people notified confirm that they are happy for the embryo to be destroyed, it can be allowed to perish before the end of the cooling off period. If not, the embryo must be held in storage for 12 months, giving the person who has withdrawn consent the opportunity to change his/her mind before the embryo has to be destroyed. If he or she does not change his/her mind, the embryo will be destroyed at the end of the year.
Consent in relation to donor gametes stored for siblings
If you have conceived a child with donor sperm or eggs (or donated embryos), you may wish to store any surplus for future children, so that your children are full genetic siblings.
The basic consent rules still apply, even if you have paid to reserve the gametes or embryos for your own use. This means that your donor (as a gamete provider) has the right to withdraw his consent to storage at any time before the gametes or embryos are used in your treatment.
In relation to gametes, the person keeping them will have to allow them to perish immediately. In relation to embryos, the statutory one year cooling off period applies before the embryos can be destroyed.
A partner who has no genetic stake in stored donor embryos or gametes (for example a lesbian couple with donor sperm in storage, or a female partner who has embryos in storage created with donor eggs) cannot withdrawn consent under these consent rules. This means that the non-biological parent has no unilateral legal means of vetoing his or her partner’s ability to use the gametes or embryos in future treatment after separation, and will need to apply to the court for an order.
Consent issues: how can we help?
Please contact us if you would like our help with:
- advice on how the law applies to you,
- disputes between gamete providers or intended parents in relation to embryos in storage or
- disputes between partners, or between donors and recipients, in relation to donor gametes stored for siblings.
