What happens to your embryos if you separate?

While the Family Law Act does not specifically deal with embryos and other genetic material, current case law in Australia suggests that the legal system considers embryos are property. This means that the Federal Circuit and Family Court of Australia (“the court”) can make orders about what can happen with them when parties separate.

Leena & Leena [2024] [i]

A recent case has specifically dealt with this issue and has confirmed that the court views embryos as property. In this case, the husband and wife were together for six years and had two children together. Throughout their relationship, the wife had become unwell which had led to her fertility issues. The husband and wife decided to freeze embryos created from their own sperm and egg with B Medical Centre.

Sometime after their separation, but while their property and parenting matters were before the court, the husband signed a form entitled “Authorisation for Disposal of Gametes, Embryos, or Tissue”. A few days later, the wife was contacted by B Medical Centre who advised her that the husband was requesting that the embryos be discarded. The wife submitted to the court that the embryos were a part of the parties’ wider property settlement.

In late 2023, the wife’s solicitors wrote to B Medical Centre requesting that, in the event of their destruction, the wife be permitted to collect the succumbed embryos. The wife stated that she wanted to dispose of the embryos with the dignity and respect she believed was necessary.

Her solicitors were advised by B Medical Centre that the husband had explicitly instructed the Medical Centre not to allow the wife to collect them.

In accordance with that clinic’s policies, the embryos were not going to be retained beyond 5 p.m. on the 9 November 2023.

On 8 November 2023, the wife issued an urgent injunction seeking orders that B Medical Centre preserve the embryos pending further order to allow for an appropriate interim hearing to be conducted. On 9 November 2023, the court granted the wife’s application.

The parties later agreed to allow the embryos to succumb but remained in dispute as to whether the wife be allowed to collect them or they be destroyed by B Medical Centre as the husband had directed.

The issue for the court to determine was if the embryos were property under the Act and therefore, if it had the power to make orders in relation to them. The court made a number of important comments including:

The difficulty with property rights with respect to gametes and embryos, is that they are deeply personal items and an embryo, if viable, can grow to become a person. It is for this reason that many are reticent to conclude that property rights exist with respect to embryos. However, as a matter of law, an embryo is not a person with rights of its own. Under the Family Law Act, an embryo is not within the definition of a child…. Whilst property rights are most commonly associated with commercial trading between individuals, they are also the basis of many other legal protections. It is property rights that are often relied upon when proceedings are brought against ART clinics or those that interfere with tissues as property rights most commonly provide a basis for suit against those who are not a party to a contract. [ii]

The court went on to say that:

The legal rules for property rights are a system of legal regulation that provide for rights by a person against the world with respect to the subject matter of the property right. As property rights are a legal construct, it is the legal system that determines what can be the subject of property rights and over the centuries, this is altered. Property rights are not limited to items that are tradable or have a market value. For example, they are frequently relied upon to determine rights to items of significant emotional value with no resale worth such as wedding albums, a baby’s sonogram, a child’s first tooth, a keepsake from a trip or a great grandmother’s letters. By allowing a person property rights over an embryo, the law does not convert an embryo into something equivalent to a chattel but provides a suite of rights to those who have created the embryo. As with many property rights, the law imposes considerable restrictions on the extent of those rights and how they may be exercised.  [iii]

When making its decision, the court considered that both parties had contributed their genetic material, the wife her ova and the husband his sperm noting that it is more invasive and more emotionally exhausting to extract ova than it is to collect sperm. Additionally, the wife paid the fees to keep the embryos stored, therefore contributing financially, although that cost could have been adjusted for in final property proceedings which were pending when this judgement was delivered. The court noted that the ‘embryos are the product of the bodies of each party and give rise to significant emotional issues for the parties, neither of which can continue to conceive naturally. The outcome (destruction or delivering the embryos to the wife) will have an emotional impact upon each of the parties.’ [iv]

Ultimately the court held that the embryos were property of the parties but, that they should not be delivered to the wife and, accordingly, the embryos were ordered to be destroyed by B Medical Centre.

Implications 

There are a number of implications that this case has for separating couples:

  1. The good news is that this case confirms that Registrars of the court can make orders by consent about embryos. It also makes it easier for the court to make orders about embryos, and for parties to include what to do about embryos in financial agreements. The case is a positive step forward enabling resolution of disputes involving embryos
  2. When couples separate, they need to tell their lawyer that they have stored embryos, eggs and/or sperm. As much detail as possible should be provided such as:
    • Where they are held,
    • The agreements signed by the parties at the time of storage,
    • ere the embryos created with the parties genetic material or were donors involved.

If you are separating from your partner or spouse and you have stored embryos, please consult with us as soon as possible.

 

[i] Leena & Leena [2024] FedCFamC1F 135.

[ii] At 37.

[iii] At 50.

[iv] At 62.

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