Tens of thousands of couples seek the services of assisted reproductive technology each year, with many children now conceived through in-vitro fertilisation (IVF). One in six Australian couples suffer infertility and around 1 in every 25 Australian births are a result of IVF. During this process, embryos are created, frozen and stored in readiness for the couple of use. But what happens if the couple divorces and there are still embryos in storage? Who ultimately takes possession of them?

An Ontario judge ruled recently that a woman could use a frozen embryo to conceive despite her ex-husband’s objections. The court reached this conclusion: A spouse who wishes to use an embryo to reproduce should be afforded this opportunity. The judge’s reasoning, however, sets a troubling precedent and highlights problems with Canada’s assisted reproduction laws – and any case where technology has outpaced the law.

Under federal law, spouses who create in vitro embryos from their own sperm and eggs have joint control over these embryos. Should one spouse change their mind – and no longer wish to use these embryos to reproduce – the other will be unable to use them.

In the Ontario case, neither spouse had a genetic connection to the embryo; they had purchased sperm and eggs in the United States. The judge found that the ex-wife should have sole ownership of the embryo and ordered her to reimburse her ex-husband for half the cost of creating it (US$1,438). The court relied upon contracts the couple had signed with their fertility clinics indicating that the embryo should be treated as property and that the clinic should respect the ex-wife’s wishes upon divorce.

Should courts enforce clinics’ contracts? Studies indicate that individuals frequently change their minds about what should happen to their surplus embryos, especially after they have children through in-vitro fertilization (IVF). Moreover, patients might be inadequately informed about the legal consequences of these agreements. Indeed, prior to the Ontario case, courts had yet to pronounce on the validity of these contracts.

What about treating embryos as property? The Assisted Human Reproduction Act,which criminalizes paying for sperm and eggs in Canada, makes clear that reproductive material is not property that may be exchanged on the market. Adopting a property approach also means that embryos could be used as a bargaining chip in acrimonious divorces. A spouse that wishes to use an embryo to conceive may regard it as invaluable and their partner might exploit their desire to have more children to gain more property in a divorce.

embryos, family law, divorce, IVFWhat happens to frozen embryos in Australia?

The legislation varies between Australian states however the national Assisted Reproductive Technology guidelines form the ethical basis for most IVF clinical practices.

Upon agreeing to participate in IVF, the clinic will obtain consent to what will happen in various instances including the breakdown of relationship, when there are left over embryos after completing your family, or if one of you dies. This will be upheld unless there is a compelling argument made in court. in the case of G and G [2007] FCWA 80, the Western Australian Family Court found that the dominant approach taken by the Court is to give effect to the original consent, where it is available and effective and which was signed at the beginning of the treatment. In this matter six frozen embryos were stored during the course of the relationship and when it came to an end the woman sought to have the frozen embryos destroyed but the man sought that they be transferred to his custody so that they could be used by another infertile couple. The contract signed at the beginning of the process indicated that the embryos would be destroyed in the event that the relationship broke down. The Western Australian Family Court here found that the embryos should be discarded in accordance with the terms of this agreement.

Ultimately the Judge held that:

“…the embryos were created for a purpose to enable [Mrs G] to fall pregnant at a later date…The embryos should be allowed to succumb as the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embryos.”

Establishing consent is central to these disputes about the ownership of your biological tissue. Fast-moving developments in reproductive technology are creating huge challenges for courts around the world. We recommend you seek independent legal advice to ensure your wishes are clear, and legally binding, in the event of a divorce or death.

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