What happens to frozen embryos if you separate?

What happens to our frozen embryos if my spouse and I separate?

Advancements made in reproductive technology and increasing numbers of people using IVF means a dispute can now arise in property settlement disputes about what happens to any frozen embryos a couple may have in storage in the event that the couple separates.

National Guidelines for fertility clinics state that once an embryo has been created, “the parties for whom the embryo has been created, have responsibility for its use, storage and disposal”. Fertility clinics therefore usually require you and your spouse to consider what you want to happen with any unused embryos in the event that circumstances may change at the outset of the IVF process. Changes in circumstances can include things like if a couple decides that they do not want any more children, one party dies, or in the event that the parties separate and/or divorce.

There are three common scenarios in terms of deciding who will retain ownership of embryos in the event that you and your spouse should separate:

1. You can decide that the embryos should be destroyed;
2. You can agree that one party will retain the embryos;
3. You can agree to defer that decision until a separation actually occurs.

IVF is a highly stressful and emotional process, and it may be tempting to delay the decision about ownership of embryos in the event you and your spouse separate until the actual time of separation.  However, from a family law perspective, it is very important that this decision is made at the outset of the IVF process in order to remove any potential conflict and uncertainty.

How does the Court decide what happens with embryos?

The Family Law Act 1975 does not contain any specific provisions about how the Court should treat embryos however, the existing case law in Australia has shown that the Court is likely to uphold what is provided for in the contract a couple already has in place with their fertility clinic. Two examples of decisions made by Courts in Australia include:

1. G and G [2007] FCWA 80 – the parties’ contract with their fertility clinic stipulated that in the event the parties separated, the parties consented to any unused embryos being destroyed.  When the parties separated, the husband had changed his mind and wanted to donate the embryos instead whereas the wife wanted the contact to be upheld and the embryos destroyed. The Court decided that the contact should be upheld and the embryos were to be destroyed.
2. Piccolo & Piccolo [2017] FCWA 167 – the parties had used an egg donor and chose to freeze two embryos. The contract that the parties had with their fertility clinic allowed them to make a decision about ownership of the embryos in the event that they separated, at the time of separation. When the parties did separate, there was a dispute over what was to happen with the two embryos. The husband wanted to keep them and the wife wanted them destroyed. In this case, the Court found in favour of the husband but only on the basis that the embryos were not genetically connected to the wife.

If you are someone who is separated and you and your former spouse are unable to agree on what should happen to your frozen embryos, you are encouraged to seek legal advice about the best options available to you to resolve this issue.  Contact our office to make an appointment with one of our solicitors to obtain advice on your situation on (07) 4963 2000 or through our online contact form below.