Embryo and gamete storage: consent and what happens to unused embryos

Most IVF cycles leave something behind: embryos that were not transferred, eggs or sperm frozen for later, sometimes tissue stored before cancer treatment. Each of these sits in a tank under a set of written instructions, and those instructions decide what happens to it if you separate, if one of you dies, if you stop paying for storage, or if you simply never come back. This guide explains how embryos and gametes are stored, what the Assisted Reproductive Technology (Regulation) Act, 2021 says about consent and storage, and what happens to material a person does not use. It is written for patients and for the doctors who advise them. It publishes no success rates and no prices, because this directory holds neither for any clinic, and it is not legal or clinical advice. Everything it refers to can be found from the directory home.

What the law means by storage

The Act uses one word for freezing and keeping. In section 22, to cryo-preserve means “the freezing and storing of gametes, zygotes, embryos, ovarian and testicular tissues”, so everything in this guide falls under the same rules whether it is an embryo, an egg, a sperm sample or tissue. The Act also names the two kinds of organisation that hold such material. A clinic carries out treatment, while an assisted reproductive technology bank is an organisation that “shall be responsible for collection of gametes, storage of gametes and embryos and supply of gametes to the assisted reproductive technology clinics or their patients”.

How storage is run is left to rules made under the Act. Section 28(1) says “The standards for the storage and handling of gametes, gonadal tissues and human embryos in respect of their security, recording and identification shall be such as may be prescribed.” Security, recording and identification are the three things a patient can reasonably ask a clinic to explain.

Why embryos are left over

The HFEA, the UK fertility regulator, explains the usual reason: “Often with in vitro fertilisation (IVF) or Intracytoplasmic sperm injection (ICSI) treatment, there may be some good quality embryos left after embryo transfer.” Freezing them means they can be used later without another round of stimulation. Embryos are also frozen when a fresh transfer is not safe; the HFEA lists the case where “Your treatment needs to be cancelled after egg collection (for example, if you over respond to fertility drugs).” And some people freeze eggs, sperm or embryos to preserve fertility before treatment for another condition, which the guide to egg freezing and fertility preservation covers in detail. The guide to the IVF process explains where in a cycle these decisions arise.

How freezing works

Before anything is frozen, the people it came from are screened: “Firstly, you'll need to be tested for any infectious diseases like HIV and hepatitis.” Not every embryo is suitable; “only good quality embryos will be chosen to freeze.” The freezing itself is described by the HFEA in two steps. “The embryos are put in a special solution containing substances (cryoprotectants), which help to draw water out from the embryo and provide protection in the cells.” Then “They're then frozen, mostly by a technique called vitrification (fast freezing) and stored in tanks of liquid nitrogen until you're ready to use them.”

Sperm is usually frozen in portions. “Before freezing, the sperm sample is usually divided between a number of containers called straws. This means that not all the sperm needs to be thawed at once and can be used in multiple treatments.”

Freezing is not risk-free for the material. The HFEA says “Sadly, not all embryos will survive the freezing and thawing process and very occasionally no embryos will survive.” On long storage, it is careful not to claim more than the evidence shows: “there is not enough evidence available to say for sure whether storing gametes and embryos for longer periods has any negative impact on their viability.” The embryo freezing and egg freezing pages describe the procedures.

Consent comes before freezing, in writing

The Act makes written instructions a condition of storage. Section 22(2) says “The clinics and banks shall not cryo-preserve any human embryos or gamete, without specific instructions and consent in writing from all the parties seeking assisted reproductive technology, in case of death or incapacity of any of the parties.” Section 22(3) then limits use: “The clinic shall not use any human reproductive material, except in accordance with the provisions of this Act to create a human embryo or use an in-vitro human embryo for any purpose without the specific consent in writing of all the concerned persons to whom the assisted reproductive technology relates.”

In practice the forms ask the same questions everywhere. The HFEA lists them for UK patients, and they are a good checklist in India too: how long the material is to be stored, “what should happen to your embryos if you were to die or become unable to make decisions for yourself”, whether it is for your own treatment only or may be given for research, and any other conditions you want to set. Take the forms home, answer each question deliberately, and keep a copy of what you sign.

An embryo belongs to two people

Frozen eggs or sperm involve one person's decision. An embryo created with a partner involves two, and the Act lets either of them change their mind. Section 22(4) says “Any of the commissioning couple may withdraw his or her consent under sub-section (1), any time before the human embryos or the gametes are transferred to the concerned woman's uterus.” The HFEA states the consequence plainly for UK patients: “If your partner withdraws their consent then your embryos cannot be used in treatment.”

The same principle covers death. Section 24(f) says “the collection of gametes posthumously shall be done only if prior consent of the commissioning couple is available in such manner as may be prescribed”. If you would want stored material to be used, or not used, after your death, the only safe place to say so is the consent form, before anything is frozen.

How long material is stored

The Act sets a limit in section 28(2): “The gamete of a donor or embryo shall be stored for a period of not more than ten years and at the end of such period such gamete or embryo shall be allowed to perish or be donated to a research organisations registered under this Act for research purposes with the consent of the commissioning couple or individual, in such manner as may be prescribed.” That wording addresses a donor's gametes and embryos. It does not set out, in that section, a separate period for a person's own frozen eggs or sperm, so ask the clinic in writing which period it applies to your material and what renewal involves. UK patients reading the HFEA's pages will see a different storage regime, which is UK law and does not apply here.

What happens to embryos and gametes you do not use

This is the question most people put off, and the Act answers more of it than many expect.

Embryos and donor gametes at the end of storage. Under section 28(2), quoted above, they are either allowed to perish or donated for research, and research needs the consent of the couple or individual. There is no third route in that section, so if you have views about either outcome, record them when you consent to storage.

Unused donor eggs. Section 27(5) says “All unused oocytes shall be preserved by the banks for use on the same recipient, or given for research to an organisation registered under this Act after seeking written consent from the commissioning couple.” Eggs from a donor are kept for the same recipient, not passed to another couple.

Embryos found to carry a disease. Section 25(2) allows an embryo to be donated to research after genetic diagnosis only “with the approval of the commissioning couple or woman” and “when the embryo suffers from pre-existing, heritable, life-threatening or genetic diseases.” The PGT page explains that testing.

Research, and only within India. Section 30(1) says “The use of any human gametes and embryos or their transfer to any country outside India for research shall be absolutely prohibited.” Research inside India is to be done in a prescribed manner by a registered organisation.

No sale, ever. Section 29 says “The sale, transfer or use of gametes, zygotes and embryos, or any part thereof or information related thereto, directly or indirectly to any party within or outside India shall be prohibited except in the case of transfer of own gametes and embryos for personal use with the permission of the National Board.” Section 33(1) makes it an offence to “sell any human embryo or gamete for the purpose of research”. Nobody can lawfully offer to buy embryos or gametes you no longer need.

If you read UK material, you will see that HFEA patients may also donate embryos to another person's treatment or to training. Those options are described under UK law. Ask the clinic in writing which options it can lawfully offer under the Indian Act before you assume any of them.

Records, and what happens if a clinic closes

Stored material is only as safe as the records that identify it. Section 23(a) requires that “all clinics and banks shall maintain detailed records of all donor's oocytes, sperm or embryos used or unused, the manner and technique of their use”. Those records are to be kept “for at least a period of ten years, upon the expiry of which the clinic and bank shall transfer the records to a central database of the National Registry”. And if a clinic shuts early, section 23(d) says “in the event of the closure of any clinic or bank before the expiry of the period of ten years under clause (c), such clinic or bank shall immediately transfer the records to the central database of the National Registry”. The records move; the material itself needs its own arrangement, so ask what the clinic has planned for its tanks if it closes or changes hands.

Keep in touch with the clinic

Most stored material that is lost to its owners is lost because the clinic cannot reach them. The HFEA's advice applies just as well in India: “Make sure you tell your clinic if any of your contact details change.” It also asks patients to tell the clinic “if your circumstances change (eg, in the event of separation from your named partner).” A separation does not change what you signed; only a new written consent does.

Ask too how storage is billed and what happens if a payment is missed. This directory holds no prices, so it cannot tell you what storage costs at any clinic.

Moving stored material

Because of section 29, moving your own stored embryos or gametes is not a private arrangement between two clinics. It is allowed for personal use with the permission of the National Board. If you might later move to another clinic or another city, ask before freezing how the clinic handles a transfer, and keep your discharge certificate and consent forms together.

Using frozen embryos later

A frozen embryo transfer is simpler than a fresh cycle. “The initial steps depend on whether you are ovulating regularly.” If your periods are regular, the transfer may be timed to your own cycle; if they are not, drugs prepare the lining of the womb. Then “the clinic's embryologist (embryo specialist) will thaw your embryos and usually transfer one embryo to your womb”. The Act's ceiling on the number transferred applies to frozen embryos as much as fresh ones.

Questions to ask before anything is frozen

• Will my material be stored by the clinic or by a registered ART bank?
• Which storage period do you apply to my embryos, eggs or sperm, and how is it renewed?
• What exactly will I sign about death, incapacity and separation, and may I take the forms home first?
• What happens to my embryos at the end of storage, and which options can you lawfully offer?
• How are the tanks monitored, and who is alerted if one fails?
• What happens to stored material if the clinic closes or changes hands?
• How is storage billed, and what happens if a payment is missed?
• If I move to another clinic, what does a transfer involve?

For doctors advising a patient

The consent conversation is often rushed because it happens in the middle of a cycle. A patient who has been told in advance that storage needs written instructions about death and incapacity, and that either partner may withdraw consent to an embryo's use until transfer, can make those decisions calmly. Where a patient is freezing before cancer treatment, raise storage and consent at the first fertility appointment, not on the day of collection.

Finding a clinic that stores embryos

Pages such as embryo freezing in Delhi and embryo freezing in Mumbai list the clinics in a city that name the treatment on their own website. That is the clinic's own statement, not a check of its storage. To see every registered clinic in a city, start from the clinics index or a city page such as Hyderabad. Each clinic page shows the registration number recorded in the National ART & Surrogacy Registry extract, and the fertility doctors index lets you look a doctor up by name. The treatments index explains each procedure, the guide to donor eggs and donor sperm covers donor material, and the guide to your rights under the ART Act covers consent and confidentiality in full.

Where this guide comes from

Statements about the law are quoted from the Assisted Reproductive Technology (Regulation) Act, 2021. Descriptions of freezing and of the consent questions are quoted from the patient pages of the UK's Human Fertilisation and Embryology Authority (HFEA). UK law on storage differs from Indian law, and where it matters the Indian text is quoted instead. Rules made under the Act can change, so check the current position with the clinic. Facts about clinics come from the National ART & Surrogacy Registry extract this directory holds and from each clinic's own website. Nothing in this guide is legal or clinical advice, and nothing in it is sponsored.