Embryos and separation: what happens when a relationship ends

What happens to stored embryos if a relationship ends? 

For couples who are going through, or have had previously, fertility treatment, the breakdown of a relationship can create complex legal issues. Decisions about embryos are deeply personal and emotional at the best of times, but separation can make matters significantly more complicated. 

This article outlines the legal framework in England and Wales concerning embryos and parental rights when a relationship ends.  

What is an embryo? 

An embryo refers to a developing unborn child in the early stages following fertilisation, typically from around two weeks up to eight weeks. After this stage, it is generally described as a foetus. 

How long can embryos be stored? 

Individuals undergoing fertility treatment may store their gametes (sperm or eggs) or embryos for up to 55 years. However, storage is not automatically granted for the full period; consent must be renewed at least every 10 years. 

Clinics often recommend embryo freezing rather than egg freezing because success rates are generally higher. Combined with the extended storage timeframe now available, this has led to an increase in legal disputes between partners on a relationship breakdown over embryos that remain in storage long after a relationship has ended.   

Consent and the use of embryos 

Consent is central to fertility treatment. Both parties must provide consent before gametes are used to create embryos. Importantly, either person can withdraw their consent at any time before the embryo is transferred or otherwise used. 

If consent is withdrawn and no agreement can be reached regarding the embryo’s future, the embryo cannot lawfully be used. There’s usually a cooling off period of 12 months after consent is withdrawn before the embryo is destroyed.   

In the event of a relationship breakdown, consent by the partner to use your eggs is not required.   

The legal position of the birth mother 

The person who gives birth to a child is recognised in law as the child’s mother, regardless of whether she has a genetic connection to the child. 

The law provides further that a woman who donates eggs or embryos will not automatically be treated as the child’s legal parent. However, valid consent must have been obtained before the eggs or embryos were transferred for treatment. 

The legal position of spouses and partners 

Where a man is genetically related to a child, he will ordinarily be recognised as the legal father, provided there is no other person who qualifies as the second legal parent. Under UK law, a child can have no more than two legal parents. 

The law says that a spouse or civil partner of the birth mother (regardless of their sex) will be recognised as a legal parent even without a genetic link, provided they consented to the fertility treatment. The critical issue is consent to the embryo transfer or insemination, not simply a general intention to become a parent. 

Reducing the risk of dispute 

If you no longer wish to be considered a potential legal parent, it is essential to formally withdraw your consent through the fertility clinic. This should be done in writing and in accordance with the clinic’s procedures.  Where consent is withdrawn and no agreement is reached regarding future use, the embryo will be destroyed after a 12-month period (see above regarding the cooling off period).  

Given the emotional and legal complexity of these situations, specialist legal advice is strongly recommended if you are facing separation and have embryos in storage. 

About Amy Lane: A Private Client Partner and specialises in the legal complexities surrounding families created through assisted conception and surrogacy. She has more than a decade of experience in complex estate and succession planning, Amy advises intended parents, donors and wider family members on how to protect their legal, financial and parental interests through properly regulated arrangements. Amy is committed to raising awareness of the role that formal estate planning plays for modern families formed through fertility treatment or surrogacy, ensuring clarity around legal parenthood, guardianship, and inheritance rights.