Egg, sperm and embryo freezing: what could go wrong?

20 June 2022

Egg, sperm and embryo freezing can help preserve and maximise individual fertility. However, it is not a failsafe way to guarantee conception and delivery of a much-wanted baby. There are a variety of practical and legal issues to consider. Not freezing gametes and embryos at all, delaying collection and freezing and failing to build up sufficient reserves of frozen eggs, sperm and embryos can undermine your chances of successful family building. Failing to consider the legal aspects which govern the storage and use of frozen eggs, sperm and embryos in fertility treatment can also create unwanted problems and even prevent their use in treatment.

Egg, sperm and embryo freezing

Individual fertility is precious and fragile and it can be lost unexpectedly through illness, accident or negligence. Women’s fertility in particular is subject to age-related fertility decline and conflicting trends in later-life parenthood. This makes it important to think about maximising and preserving your fertility and not taking it for granted. A decision to freeze too late in life (particularly for women reaching their late 30’s and beyond) can result in a lack of quantity and poor quality gametes with low or no viability at all.

Whilst flash freezing of eggs (by vitrification) has improved the viability of freezing eggs, it is important to remember that not all eggs will survive the freezing and thawing process and further losses can be experienced in the creation of embryos. On top of this, there are no guarantees that a cycle of fertility treatment (e.g. IVF) will be successful, multiple treatment cycles may be required and sadly some will be unable to conceive and sustain a pregnancy at all.

Legalities of storing and using frozen eggs, sperm and embryos

From a legal perspective, it is important to understand and proactively manage the legal terms which govern the storage, control and use of eggs, sperm and embryos in fertility treatment in the UK. For women, who have finite fertility windows, this can be particularly important and help maximise their options in the event they separate from their partner, conception attempts with a partner’s sperm sample or with donor sperm prove unsuccessful and provide flexibility and options to seek to conceive a biologically related child with a new partner further down the line.

Take the case of Ms Natalie Evans, who in 2001 created and froze six embryos with her partner Mr Howard Johnston in IVF treatment before undergoing treatment for ovarian cancer which left her infertile. Unfortunately, their relationship subsequently broke down and a legal dispute arose between them about the use of those embryos in further fertility treatment. Ms Evans took her case through the UK courts and all the way to the European Court of Human Rights in 2007. She argued that she should be able to use  them in fertility treatment as they represented her only hope of having her own biological child.  Mr Johnston argued that as they were no longer a couple, he did not want them used in further fertility treatment and he did not want to become a parent in this way. This irreconcilable conflict between them ultimately resulted in a legal ruling which prevented Ms Evans from using the embryos and their destruction.

Legal issues and difficulties can also arise in circumstances where people have created embryos overseas with an anonymous donor and then wish to import them into the UK. There is currently no automatic right to import embryos comprising anonymous donor gametes under UK law and you would then need to make an application to the Human Fertilisation and Embryology for special permission to import them.

Complex legal issues and problems can also arise in relation to the collection, storage and use of eggs, sperm and embryos in posthumous fertility treatment to preserve biological legacy and honour family building wishes notwithstanding death.

Specialist fertility law advice

Given the importance of individual fertility and the complex legal and wiser issues that can arise, it is advisable to obtain specialist fertility and family law. Bespoke expert fertility and family law advice helps you effectively and efficiently project manage your family building journey. It enables you to identify, understand and proactively navigate a whole range of legal issues and risks and maximise your chances of a successful outcome. It can:

  • Help you maximise and protect your fertility and/or that of a loved one.
  • Help access and navigate fertility treatment and/or donor conception at a UK licensed fertility clinic.
  • Help you understand and proactively manage the legal issues associated with donor conception.
  • Provide help and assistance with import and export of gametes and embryos.
  • Help you collect, store and use gametes and embryos in posthumous fertility treatment.

If you would like specialist fertility, donor conception and family law advice and assistance contact Louisa Ghevaert by email or by telephone +44 (0)20 7965 8399.

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