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15 May 2003

Dear Colleague,

Withdrawal of Consent to Storage

The HFEA is aware of a recent case where one party had withdrawn consent to the continued storage of embryos and that the embryos were subsequently allowed to perish without the other party, whose gametes had been used to create the embryos, being notified. The HFEA would like to clarify that where consent to continued storage has been withdrawn by only one gamete provider, centres are expected to take steps to ensure that the other gamete provider (unless that person is a donor) is informed of the centre's obligation to dispose of the embryos.  Where the woman to be treated is not one of the gamete providers, the centre is expected to take similar steps to ensure that she is informed of the its obligation to dispose of the embryos.

The HFEA has received a number of queries in relation to the variation or withdrawal of consent to storage of embryos. Therefore, a list of frequently asked questions and answers is enclosed with this letter (attached at Annex A).

If you have any queries about this letter please contact Dr Chris O'Toole, Policy Manager, by phone on 0207 539 3324 or by e-mail at chris.otoole@hfea.gov.uk.

Yours faithfully,  

Suzi Leather
Chair

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Annex A

STORAGE OF EMBRYOS WHERE CONSENT WITHDRAWN BY ONE GAMETE PROVIDER

Issues for clarification

 

1.  How can a gamete provider withdraw his or her consent to storage or use of an embryo?

The Act does not say that withdrawal of consent has to be in writing.  However, it would be prudent for a Clinic to obtain written confirmation where consent is being withdrawn.

2.  Should Clinics have the consent of both gamete providers before they allow embryos to perish?

This is not needed in law.  The relevant consent is not consent to allow the embryos to perish but the consent to storage.  Clinics may store the embryos as long as they hold these consents and the consents are compatible.

3.  What if the notice withdrawing the consent is ambiguous?

The Clinic should seek clarification with the gamete provider concerned before taking any steps in relation to the embryo.  For example, if a gamete provider withdraws consent to use of an embryo in future treatment services, it would be inappropriate to use the embryo after the consent has been withdrawn.   However, the Clinic should not assume that the gamete provider is withdrawing consent to continued storage.  This should be clarified with the gamete provider concerned before the embryos are allowed to perish. 

4.  Should Clinics notify the other gamete provider the woman to be treated, where consent has been withdrawn?

Clinics should give notice of the fact that consent to storage is being or has been withdrawn. Where possible to do so, in accordance with the requirements of the 1990 Act, notice should be given before the embryos are allowed to perish.

5.  To what lengths do Clinics have to go to contact the other gamete provider (or where that person is a donor) the woman to be treated

Centres should make all reasonable efforts to notify the individual concerned.  This should include writing to the last known address (by Recorded Delivery or Registered Post) and attempting to speak to the individual by telephone.   The Clinic is not required to wait for a response from the individual concerned nor to wait for confirmation that the individual has actual notice of the withdrawal of consent.  However, in paragraph 10.10 of the Code of Practice Clinics are advised to endeavour to maintain contact with the providers of stored gametes and embryos.

6.  If a legal challenge is made against a Clinic that proposes to allow embryos to perish, could the Clinic continue to store the embryos pending the outcome of the case?

If an Order from a Court is obtained to the effect that embryos should not be destroyed pending the outcome of the Court's review of the case, the Clinic should comply with that Court Order in respect of those embryos.  If the Clinic receives notice that legal proceedings are about to be commenced, in which one of the parties will be seeking an Order that the embryos should remain in storage, then it is reasonable for the Clinic to allow the embryos to remain in storage until such time as the application is made and thereafter in accordance with any Order made by the Court.

7.  Can the HFEA authorise continued storage of embryos where consent by one gamete provider has been withdrawn?

The 1990 Act does not give the HFEA power to authorise continued storage. However if a Clinic is uncertain as to the action that it should take in a particular case then the Authority will endeavour to give appropriate guidance.

8.  Must Clinics make arrangements to allow embryos to perish on a daily basis or could they, at the end of each month, thaw and allow to perish those embryos which have either reached the expiry of their storage period or where consent has been withdrawn during that month?

Clinics should have clear written procedures for regularly reviewing the status of embryos currently in storage. This should include a procedure for identifying embryos reaching the end of their storage period.  The Authority has previously indicated that it would be reasonable for such a procedure to be carried out weekly in relation to embryos that have reached their storage period within the previous week.  The Authority would not expect Clinics to make separate arrangements for the perishing of embryos in respect of which consent has been withdrawn during the previous week.

Page last updated: 14 April 2009

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