Commentary by ‘Ala Pomelile
Two same-sex couples in the UK face losing their frozen embryos after their sperm donors withdrew consent. Fifteen embryos. Fifteen human lives.
Under UK law, a donor may withdraw consent at any point before an embryo is transferred to the womb. Once consent is withdrawn, the embryos may be stored for a cooling-off period of up to 12 months. After that, unless consent is restored, they must be allowed to perish. The law is designed to protect the principle that no person should be compelled to become a parent without ongoing consent.
These are not hypothetical cases. One couple are expecting their first child after a successful transfer and have 10 embryos remaining. The other couple have a young son born from their donor and hoped to have more children using their remaining embryos. Both families now face losing embryos they regard as future siblings for their children.
Our hearts go out to these families. Their grief is real and deserves compassion. But this story raises deeper questions about how we think about embryos, parenthood and the interests of children.
An embryo is not a thing
Public debate often treats embryos as “material”, “tissue” or “cells in a freezer”. The families in this story know otherwise. They do not talk about losing property. They talk about losing their children’s siblings.
They are right. An embryo is not a thing. It is a human life from the moment of conception.
Yet much of the discussion surrounding these cases has focused on adults: their grief, their plans and their rights. All of those matter. But the embryos themselves remain largely absent from the conversation.
When a system is built primarily around adult consent, adult timelines and adult preferences, the human life with the most at stake has no voice at all.
How does any society get to this point? The answer lies in third-party reproduction. Donor conception intentionally creates circumstances in which a child is raised apart from one biological parent. The donor who withdrew consent is, biologically, the father of those embryos and of the children already born from his donation. Yet the system defines his role largely through paperwork rather than through any ongoing parental relationship.
This is not a criticism of the families involved. It is a criticism of a system that reduces fatherhood to a legal and administrative category.
Children are not products. They have rights of their own, including the right to life and, wherever possible, the right to know and be raised by their mother and father. Article 7 of the United Nations Convention on the Rights of the Child states that a child has, “as far as possible, the right to know and be cared for by his or her parents.”
Could this happen here in NZ? Partly.
New Zealand has already closed the specific door that harmed these British families, at least for some treatments. The Advisory Committee on Assisted Reproductive Technology (ACART) issued guidelines in 2020. They cover procedures that require approval from the Ethics Committee on Assisted Reproductive Technology (ECART), including clinic-assisted surrogacy. Under those guidelines, a sperm or egg donor can withdraw consent only up until an embryo is created. After that, decisions about the embryo rest with the people it was created for.
That is a good rule. But important gaps remain.
Most donor-sperm treatment does not go through ECART. It relies largely on clinic policies rather than a clear statutory rule. Donated embryos can still be withdrawn from intended recipients right up until transfer. And where donor sperm or eggs were used, embryos can only be donated to another family with the donor’s consent. No donor consent is needed to discard them.
Donor withdrawals are rare. The deeper issue is not.
IVF routinely creates more embryos than will ultimately be transferred. Under New Zealand’s Human Assisted Reproductive Technology Act 2004, embryos may generally be stored for 10 years. Storage beyond that requires ECART approval. Parliament amended the Act in 2010 to clarify the storage framework.
These British cases made headlines because the parents wanted their embryos to live. In New Zealand, embryos are also stored and discarded within a legal system specifically designed to manage those outcomes. If we can recognise the tragedy in these fifteen embryos, i.e. human lives, we should also be willing to think about the many others that never become part of a news story.
Why this matters now
The Improving Arrangements for Surrogacy Bill would make intended parents the legal parents of children born through surrogacy, in most cases from birth, removing the need for adoption.
That gives the next Parliament an opportunity to ask a deeper question. Should we be making arrangements that deliberately separate children from their biological parents easier and more efficient?
The bill amends the HART Act, yet it does not address embryo storage, consent or disposal. Nor does it seriously confront what it means for a child to be planned from the outset to be separated from the woman who carries them.
The HART Act itself states that one of its purposes is to protect the health, safety, dignity and rights of those involved in assisted reproduction, “particularly those of women and children”. It also enables donor-conceived people to discover their genetic origins. Those provisions recognise an important reality: biological identity matters. If children’s interests matter after birth, they should matter before birth, and before conception too.
Whilst the bill is on hold until a new government is formed. There are some considerations worth looking at to help keep children at the heart of discussions and legislative changes.
First, protect every embryo already created. The rule that a donor’s consent ends when an embryo is created should be written into the HART Act and apply to all treatment.
Second, reduce the creation of surplus embryos. New Zealand should examine ways of ensuring no more embryos are created than are likely to be used.
Third, put children’s rights at the centre of surrogacy reform. Any future changes should begin with the interests of children, including their right, wherever possible, to know and be raised by their mother and father.
Infertility is a deep and painful grief. Those who experience it deserve genuine compassion, support and understanding. The longing for a child is powerful and profoundly human. But compassion for adults, including adults’ desire to have children, must never come at the expense of children.
We can honour that longing whilst insisting on two things. Every human life from the unborn to the born, including every embryo, deserves protection. And every child (wherever possible) deserves to know and be raised by the mother and father who gave them life.
