# Donor consent withdrawal



## jgiles (Oct 20, 2008)

Hello Natalie



I wonder if I could ask for your advice please. 

In 2006 I underwent an IVf cycle using my own eggs and donor sperm.  3 embryos from this cycle were transferred into me, but failed to implant, and 3 embryos were frozen for future use. These embryos are extremely precious to me.

At all stages during this treatment I was informed that these embryos were mine to use at any point within a five year window. During 2007 the effect of an gonapepytl injection stopped me cycling for about 5 monthes, so during that time I had to wait before undergoing the frozen embryo transfer with the remaining embryos. This in itself was incredibly frustrating and I was getting very concerned about the time because  if I needed a fresh cycle every month was critical. However I eventually started recyling(before treatment my periods were perfectly regular) and could start on the Supercur injections - I was 3 weeks into these injections, when I was told that the donor had withdrawn his consent and I could no longer use the embryos!!!! (actually I beleive he had withdrawn his consent before I started the injections but there was a communication error between doctors). This news absolutely devastated me as these eggs realistically represented my last chance in life to have a baby using my own genetic eggs- I am now 45 and considered only suitable for donor eggs (for which there is a 2-3 year waiting list).  I paid the clinic over £5000 for the IVF cycle that created those embryos, became quite ill during the cycle and travelled over 1000 miles back in forth in total for the treatment. In every sense of the word they are extremely precious to me and I cannot beleive that the clinic are allowed to just let them perish. I understand that the donor is in two minds about withdrawing consent- sometimes he thinks it will be Ok to go ahead, and other times he is not soo sure. This state of uncertainity has now gone on for 6 monthes. I myself wrote a letter to the clinic clearly stating that I did not want the embryos to be destroyed, especially as he is making up his mind. Firstly is there anything I can do legally to protect those embryos, and secondly can I ask for any form of compensation from the clinic for giving me that gonapeptyl injection which downregulated me so much that I stopped cycling and therefore was unable to use the embryos when I wanted to and before the donor withdrew consent  I was also given no information regarding the fact that donors can withdraw their consent after fertilisation (can they do so?) Also by starting me on Supercur injections if the donor had already withdrwan consent meant I could not have any chance of conceiving naturally for two monthes.





I would be extremely grateful for any advice



Jocelyn S Giles


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## jgiles (Oct 20, 2008)

Just a quickie- just wondered if any of the legal team could aknowledge if they have had chance to read this query at all?? Thanks very much


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## NatGamble (Mar 1, 2007)

Hi Jocelyn

I feel immensely sorry for you, but unfortunately the law is absolutely clear on this issue.  The donor has an absolute right to withdraw his consent to the use of the embryos at any time before they are implanted in you so, unfortunately, the donor does have the right to stop you using your precious embryos.

This is actually an aspect of the law that has also been thoroughly challenged quite recently.    I don't know if you are aware of the case of Natalie Evans.  She was a lady who had embryos in storage (pre cancer treatment) and her ex partner (who had provided the sperm) refused to let her use the embryos after they separated.  The embryos represented her last chance to have her own genetic child - like you - and so she challenged the law, asking the European courts to rule the current law contrary to her human rights.  She lost, and it has established the very clear principle that our concrete rules about consent do stand.

I am terribly sorry, as it seems immensely cruel in your situation.  The only thing I can suggest is to do all you can to persuade the donor to change his mind, if he is wavering.  Are the clinic being helpful?  Could you write him a letter anonymously that they could pass on saying how much it would mean to you?  I do know of a couple of cases where this has worked in the past.

I'm not sure of the answer to your question about whether you might have a claim in negligence against the clinic regarding the details of your treatment.  This is outside my area of expertise but I can ask my colleague to advise you (email me if you would like him to do so - and I can then forward the email on to him) - I anticipate he'll need a lot more information about exactly what happened in the treatment to be able to give you an answer.

I'm sorry this was not the answer you were looking for, but very best of luck.

Natalie
[email protected]


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## jgiles (Oct 20, 2008)

I do very much appreciate the excellent advice. However I am very very  concerned now with the response of the clinic.

I did spend quite some time carefully composing a letter. The lady dealing with the matter at the clinic said they were making some progress on their own, and said she was not going to give it to him then. She said she was in weekly contact with him. However for 10 days now, and I know this lady was in the clinic, my phone calls have been blanked . This really really concerns me that there may be bad news and I really would like the chance just for my letter to be sent.


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## NatGamble (Mar 1, 2007)

Hi jgiles

I am sorry to hear that.  I would either just keep trying or, if you want to take things to the next level, get a solicitor to write them a letter on your behalf (which they may take more seriously).  If you would like my professional help, just let me know.

Natalie
[email protected]


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## jgiles (Oct 20, 2008)

I am extremely relieved and delighted to say that that the donor has now given his consent. I am very grateful to him. I am very pleased to be able to go forward, and luckily the donor now welcomes the chance to donate,which I feel is important for the child.
However I do feel quite upset with the clinic . It would appear that it was their fault that this error occurred. When the donor first agreed to donate, he stipulated that his sperm should only go to couples. When he found out that I was single he then withdrew his consent. I was given the wrong sperm, (there were other donors available). I also feel that the clinic have not been entirely honest with me- as they told me that the reason that he had withdrawn consent was due to a change in his personal circumstances. I do not really feel this was the case, rather a mismatch of sperm. He insisted I was told the real reason.
I do not wish to be too negative, I am very pleased that the matter has been resolved, its just that the matter has been very upsetting, lots of tears and anxiety; not really knowing what was happening. (Many phone calls ignored)

I very much do not wish this to happen to anyone else, and so wondered if a letter to the HFEA might help.(although do not really want to upset the clinic too much as I am on their waiting list for donor eggs if this fails)
Also, although this is a minor issue, would I be allowed to claim any sort of compensation from the clinic for their mistake and all the distress caused. For example, although I had already started  the Frozen embryo transfer cycle ie was about ½ way through when the cycle had to be cancelled due to this withdrawal in consent; I am now being expected to pay again entirely from stratch for this new FET cycle.



To Saffy
Many thanks for your kind message of support. I wish you the very best of luck with your cycle and very much hope all goes well. Fingers crossed.                                                                                                                I myself am not a legal or aggressive person in any way, ; but I do feel that this area of the law should be reviewed. Once those little embryos have been created I do not feel that donor withdrawal should be allowed except under exceptional circumstances. It certainly would be heartbreaking to have seen the  little embryos destroyed.
My advice to anyone undergoing treatment as things are at present- to use up any frozen embyros as soon as possible, and to choose a good clinic (although I thought I had chosen a good one)


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## jgiles (Oct 20, 2008)

Just a quick follow up question for the legal team- would I be able to claim any sort of compensation for the mistake made by the clinic, as quite a lot of time has elapsed since the original egg collection, which i beleive may have affected my ability to conceive.
Many thanks
Jo


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## jgiles (Oct 20, 2008)

I apologise, I did not paste my full message to the lawyers. The situation now is that the frozen embryo transfer sadly failed and therefore I am now in the position that the only way forward is with donor eggs. However financial resources have virtually all gone now, especially as I was expected to pay for the frozen embryo transfer twice, despite it being the clinics fault that that donor withdrew consent. Also an awful lot of time as elapsed since the donor first withdrew his consent & waiting which I beleive could affect my fertility. Is there any way I can claim any sort of compensation from the clinic, for what was essentially their mistake, towards the funding for a donor egg cycle. I beleive they do now have donor eggs available for me

Many thanks


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## NatGamble (Mar 1, 2007)

Hi Jo

Sorry not to be more helpful, but compensation/negligence etc is outside our expertise.  You could try a lawyer specialising in disputes to see if you would have a claim, or in the first instance ask the clinic about their complaints procedure.

Best of luck
Natalie


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