EMBRYOS: Are they classified as property in Family Law proceedings?

In the age of modern technology, more families are being created through in vitro fertilisation (‘IVF’). An essential question that many couples don’t consider when undergoing IVF is:

What happens to the embryos if we separate?

Where a relationship has irrevocably broken down, and a couple has frozen embryos, the Federal Circuit and Family Court of Australia (‘the Court’) applies legal principles based on the unique circumstances of each case. Generally, the Court will consider:

1. The legal rights of each party; and

2. The time, financial resources, and emotional impact each party has endured.

IVF Clinic Written Agreements

In NSW, the Assisted Reproductive Technology Act 2007 (NSW)[i] requires IVF clinics to obtain the parties’ written consent regarding the storage and future use of their embryos. In effect, a party cannot use their stored embryos without the other party’s consent.

An IVF clinic agreement typically provides for one of the three directives regarding the frozen embryos:

1. The embryos to be destroyed;
2. One party will retain the rights to the embryos while the other party relinquishes theirs; or
3. The parties can defer their decision and decide at the time of separation how the embryos are to be dealt with.

Where provided for, the parties agreed terms in the IVF clinic’s written agreement will determine ownership of the embryos or how they are dealt with post-separation.

Issues often arise where the parties have deferred their decision about the embryos and are unable to reach an agreement, or where a party abrogates the previous agreement.

So, what happens where there is no agreement?

Post-Separation: Determining Embryo Ownership in the Absence of a Mutual Agreement

In Australia, Leena & Leena [2024] FedCFamC1F (‘Leena’) is the watershed case in which Justice Riethmuller was asked to consider whether “succumbed embryos” were property capable of being dealt with under section 79 (or section 90SM for de facto relationships) of the Family Law Act 1975 (Cth) (‘the Act’).[ii]

In Leena, the key facts are as follows:

1. The parties married in 2016 and later separated in September 2022.
2. The parties have two children of the relationship.
3. During the marriage, the couple decided to undergo IVF treatment through a Medical Centre.
4. Relevantly, the parties provided the Medical Centre with their written consent (amongst other terms) to:
   1. Be jointly responsible for any cryostored embryos and such cannot be unfrozen and transferred without both parties’ consent; and
   2. If either party no longer wishes to use the cryostored embryos for treatment, either party can opt out and direct the embryos to be discarded.
5. The embryos were subsequently created using the parties’ respective sperm and eggs, then frozen and stored at the Medical Centre.
6. In late 2023, a year after separation, the husband decided he no longer wanted more children. He contacted the Medical Centre, requesting that the cryostored embryos be destroyed and discarded by the Medical Centre.
7. The wife, arguing that the cryostored embryos were part of the parties’ property settlement, wanted to collect the deceased embryos and dispose of them personally.

Although the parties agreed on destroying the cryostored embryos, they disagreed on the method of destruction.

The Court’s Decision

Justice Riethmuller recognised the profoundly personal nature of embryos, but emphasised that, as a matter of law, an embryo is not a person with personal rights nor is it defined as a child under the Act. Rather, an embryo consists of a “bundle” or “collection” of rights belonging to the parties that created them. This conclusion was based on the genetic construction and expert skill used to extract and store the embryos.

Justice Riethmuller ultimately concluded that the embryos can be classified as property under section 79 of the Act. The Court ordered that, in the circumstances, it was just and equitable for the embryos to be destroyed and discarded by the Medical Clinic. The Court reasoned that both parties had contributed their genetic material, and although the procedure was more invasive for the wife, the outcome of destruction would have an emotional impact on both parties. Thus, the wife’s request to collect the discarded embryos was not persuasive in the circumstances.

Interestingly, Justice Riethmuller’s decision also included the following considerations:

1. That the greater financial contributions of the wife towards the IVF process and storage can be reflected in the parties’ final property proceedings; and
2. That the Medical Clinic agreement signed by the parties at the time the embryos were created is relevant, but not decisive.

What Does this Mean?

If you and your partner are currently undergoing IVF, you may consider entering into a formal agreement (known as a Binding Financial Agreement) that clearly sets out who is to retain the embryos or how they are to be dealt with if separation were to occur. Under the Act, a Binding Financial Agreement provides for both married couples[iii] and for de facto couples.[iv]

If you and your partner have separated and are engaged in a property settlement dispute (through Court proceedings, Consent Orders or a Binding Financial Agreement), ensure that specific provisions for embryo ownership, storage and disposal are included. This is critical to avoid future litigation should a conflict arise.

If you require advice about a property dispute/settlement and or embryos, in the context of a family law matter, our team can assist in providing clear guidance tailored to your family’s circumstances.

By Elizajane Loader

[i] Assisted Reproductive Technology Act 2007 (NSW) ss 19, 25.

[ii] Note: Section 79 of the Family Law Act 1975 (Cth) provides the Court with the authority to make orders altering the property interests of parties engaged in a property settlement dispute

[iii] Family Law Act 1975 (Cth) ss 90B, 90C.

[iv] Family Law Act 1975 (Cth) ss 90UB, 90UC.