After a separation, stored embryos raise a particularly sensitive legal and medical question. Further treatment requires several separate checks: the type of cells, the storage period, written consent and the timing of the planned transfer.
Under Austrian law, section 17(2) FMedG requires written consent from both specified people for the transfer of developmental cells. The end of the partnership, storage and later treatment must be assessed as separate questions.
This article explains the statutory framework and the records a fertility clinic must review before further treatment.
Which question about further treatment comes first?
This short check separates consent, storage period and records.
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What is currently unclear in your situation?
Choose the answer closest to your situation. The fertility clinic records remain decisive for the individual case.
Overview of all answers.
Keep storage and treatment separate
The end of the partnership does not answer the further-treatment question by itself. Ask the clinic to confirm in writing which cells are stored, which consent is on file and which declaration is required for any transfer.
Document withdrawal to the doctor
Under section 8(4) FMedG, consent may be withdrawn from the doctor until the cells are placed in the woman’s body. No specific form is required, but the clinic must record the withdrawal.
Calculate the ten-year limit precisely
Under section 17(1) FMedG, developmental cells may be stored in an authorised hospital for no more than ten years. The relevant date is the actual start of storage. Request written information about that date.
Organise the complete clinic file
You need the original declarations, any notarial deeds, storage information and later notices. Only a complete chronology allows the legal and practical position for further treatment to be assessed.
Which cells and treatment are covered?
People often speak of frozen embryos. The Assisted Reproductive Medicine Act uses the term developmental cells in this context. That legal term matters because section 17 FMedG contains specific rules for their storage and transfer.
This article asks whether further medically assisted reproduction can be prepared after a marriage or partnership has ended. It concerns cells already stored. Questions about custody of a child born later, third-party donor material and financial claims require separate assessment.
The starting point is the fertility clinic file. It should show which cells are stored, who signed the declarations, when storage began and which period was agreed for treatment.
How long may developmental cells be stored?
Section 17(1) FMedG permits storage of developmental cells in a hospital authorised under section 5(2) FMedG. For these cells, the maximum storage period is ten years. That period must be kept separate from the question whether treatment is permitted at a particular time.
The end of the partnership does not expressly end storage automatically under the wording of this provision. The clinic must still check whether the requirements for continued storage and later transfer are met. Written information about the precise storage date is therefore an essential first step.
Storage must comply with the applicable state of science and technology. In practice, request written confirmation of the cells covered, the start date and the decision required before the ten-year limit expires.
Why is consent from both people decisive?
For the transfer of developmental cells, section 17(2) FMedG requires written consent from both spouses, registered partners or cohabitants. Consent must be given personally and while decision-capable. One person cannot derive a right to use the cells solely from the earlier joint treatment.
Section 8 FMedG also governs consent to medically assisted reproduction. The declaration must include express consent, the relevant people and the period during which treatment may take place. The clinic must therefore read the existing forms and their temporal scope carefully.
The end of the partnership matters because the statutory wording refers to spouses, registered partners or cohabitants. An earlier signature does not safely authorise every later treatment step. Whether the existing declaration is sufficient or must be renewed depends on its wording, the relationship status and the planned treatment.
Until when can consent be withdrawn?
Under section 8(4) FMedG, each spouse, registered partner or cohabitant may withdraw consent from the doctor until the semen, eggs or developmental cells are placed in the woman’s body. No specific form is required. The doctor must record the withdrawal in writing and provide confirmation on request.
This rule concerns the timing of medically assisted reproduction. It does not automatically answer how stored cells must be kept or treated after a withdrawal. The clinic therefore has to assess the documented consent for treatment and the lawful handling of the stored material separately.
Once the cells have been placed in the woman’s body, this statutory withdrawal rule no longer applies. Before that point, a person who no longer wishes to maintain consent should address the withdrawal clearly to the treating institution and request written documentation. A message to the former partner is not the same as a declaration to the doctor.
What does the two-year consent limit mean?
Section 8(5) FMedG provides that, when semen, eggs or developmental cells are placed in the woman’s body, the consent of both people may not be older than two years. This limit concerns the currency of consent for the specific treatment step.
It differs from the ten-year maximum storage period. Material may still be within the storage period while the consent is too old for the planned treatment. Conversely, a current consent does not remove the need to check the lawful storage period.
The clinic should record both dates: the start of storage and the age of consent at the planned transfer. After a separation, it must also be clarified whether both people still stand by their declarations and whether changed circumstances require new documentation.
Which records should be secured after separation?
The relevant file includes the original consent declarations, any notarial deeds, the treatment agreement and the fertility clinic records. Also secure the collection and storage dates, the type of cells, the agreed period and every notice about later use.
Keep correspondence about the separation, later declarations, withdrawals and clinic appointments. If the clinic recorded a statement orally, request written confirmation of its current records. The chronology should distinguish treatment, storage and later contact.
Keep records complete and unchanged. An email saying “no further treatment” may have a different meaning from an express withdrawal addressed to the doctor. The wording, recipient and time are all relevant.
Can one person demand further treatment alone?
Section 17(2) FMedG requires written consent from both people for the transfer of developmental cells. A unilateral declaration does not replace that joint consent. This remains so even if one person organised or paid for most of the earlier treatment.
Storage and later treatment are separate acts. The fact that cells remain at the clinic therefore does not automatically allow one person to order their use alone. The end of the relationship also does not by itself establish that the cells must immediately be destroyed or released.
If declarations conflict, the clinic must clarify the documented wishes and statutory requirements. Court proceedings may raise questions about the interpretation of a declaration or an asserted claim. They do not replace the medical consent required for treatment.
What is a sensible way to clarify the situation?
Start by requesting written information from the fertility clinic. Ask it to identify the stored cells, state the storage start date, provide the recorded consents and explain which declaration it requires for further treatment.
Then prepare a chronology of the relationship, conversations, signatures, withdrawals and planned treatment steps. Keep the ten-year storage limit separate from the two-year consent limit because they have different statutory reference points.
Once these facts are clear, assess whether a new joint declaration is possible, whether a withdrawal was documented or whether the scope of an earlier declaration needs legal interpretation. Where positions conflict, review the complete file before signing anything further.
What follows clearly from the legislation?
The legislation clearly requires developmental cells to be stored and transferred only under the conditions of the FMedG. Section 17(2) requires written consent from both specified people for their transfer. Section 8 adds the consent rules for medically assisted reproduction, including withdrawal until transfer and the two-year limit.
The relevant provisions do not state generally that every separation automatically requires destruction or that every earlier consent remains sufficient for every later treatment. The clinic records, the wording of the declarations and the planned treatment step must therefore be considered together.
The answer depends on the type of cells, the storage start date, the wording of the declarations and the current position of both people. These points should be organised before a further medical decision or legal dispute.
Important boundary: Separation does not automatically answer whether further treatment may take place. Before instructing the clinic, review the consents, storage period and planned treatment step in full.
Which dates belong together
The statutory limits have different reference points.
| Check | Question | Meaning |
|---|---|---|
| Storage | When did storage begin? | Section 17(1) FMedG limits storage of developmental cells to ten years. |
| Consent | Which written declaration is on file? | Sections 17(2) and 8 FMedG require joint consent for the relevant steps. |
| Treatment | How old is the consent at transfer? | Section 8(5) FMedG sets a two-year limit for that point. |
The specific clinic file and treatment step remain decisive.
How to organise the records
A chronology makes different declarations and time limits visible.
Request the clinic file
Record the cells, storage date and declarations on file.
Arrange the declarations
Document consent, later changes and any withdrawals with recipient and date.
Compare the limits
Calculate the ten-year storage limit and two-year consent limit separately.
Define the next step
Only then prepare renewed consent, a documented withdrawal or legal clarification.
Stored embryos after separation
Must stored embryos be destroyed automatically after separation?
That cannot be answered generally. Section 17 FMedG regulates storage and sets a maximum of ten years for developmental cells. The wording does not make the end of a partnership an automatic end to storage. The clinic must review the records and declarations.
Can one person demand further treatment alone?
Section 17(2) FMedG requires written consent from both spouses, registered partners or cohabitants for the transfer of developmental cells. A unilateral statement does not replace that joint consent.
How can consent be withdrawn?
Under section 8(4) FMedG, consent may be withdrawn from the doctor until the cells are placed in the woman’s body. No specific form is required, and the treating institution must record the withdrawal in writing.
Which time limits must be checked?
Separate the ten-year maximum storage period under section 17(1) FMedG from the two-year age limit for consent at the time of transfer under section 8(5) FMedG.