Frozen Futures: Family Law issues in Fertility Law

Written by Tom Main

The legal framework governing the storage of eggs, sperm and embryos in Scotland is primarily derived from UK-wide legislation, notably the Human Fertilisation and Embryology Act 1990, and is overseen by the Human Fertilisation and Embryology Authority (HFEA). 

A key legal principle in this area of law is informed consent. Individuals must provide written consent specifying whether their gametes or embryos can be stored, how long storage will last, and how they may be used. Consent also extends to contingencies such as death or loss of capacity. 

Recent legal reforms have significantly extended storage limits. Since July 2022, eggs, sperm and embryos may be stored for up to 55 years, provided consent is renewed every 10 years. This replaces the previous default 10-year limit and reflects evolving social trends, including delayed parenthood and advances in reproductive technology.  However, failure to renew consent within the prescribed period results in mandatory disposal, creating potential legal and ethical issues where communication breaks down between clinics and patients.

Ownership and control also raise complex legal questions. Importantly, consent can be varied or withdrawn at any stage prior to use, reinforcing patient autonomy but also opening the door to further areas of dispute. Disputes can arise, particularly following relationship breakdown, where one party withdraws consent to use stored embryos.

 Posthumous use is another sensitive area. Explicit consent is required for gametes or embryos to be used after death, and storage for this purpose is generally limited to 10 years following death. Without clear consent, surviving partners have no automatic legal right to use the material. It may be possible to seek a Court order in that situation, but each case would be considered on its own merits.

In Scotland, these legal rules intersect with broader family law considerations, including parentage and succession. As reproductive technologies advance, the law continues to balance individual autonomy, ethical considerations and the rights of all parties involved. Before embarking on fertility law treatment, it is important to obtain detailed advice on the various options available to clients both in death and following separation and/or divorce.

If you wish advice from one of our family lawyers, please get in touch.