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SAME SEX FAMILY LAW

Ownership of Embryos

An egg that has undergone fertilization is referred to as an “embryo.” Prior to fertilization, sperm and eggs are termed “gametes.” To achieve pregnancy, embryos are implanted into a woman’s uterus. To avoid multiple births, typically only one or two embryos are implanted during a single procedure, and any surplus embryos can be cryopreserved for future use. Consideration of embryos is advisable when engaging in family planning.

Embryo Storage Regulations in New South Wales

Previously, New South Wales law dictated a ten-year limit on the storage of frozen embryos, mandating the destruction of any embryos stored beyond this timeframe. However, responding to complaints from women who felt compelled to unnecessarily discard embryos, the government amended the law in 2015. Consequently, there is no longer a specified time restriction for storing frozen embryos, allowing indefinite storage. Presently, an estimated 120,000 frozen embryos are in storage across Australia.

Given the dynamic nature of life, your circumstances may evolve significantly over several years. Changes in relationships, the conception of additional children, or a shift in your interest in having children may occur. In such scenarios, thoughtful consideration is essential regarding the fate of any frozen embryos in your possession.

Most fertility clinics now typically require couples undergoing IVF treatment to sign a document outlining the disposition of frozen embryos in the event of a relationship breakdown. This includes determining ownership of the embryos. Consequently, it is advisable to discuss and establish an agreement with your partner, if applicable, prior to commencing the IVF process.

The use of frozen embryos in New South Wales is governed by the Assisted Reproductive Technology Act 2007 (NSW). Section 19 of the Act explicitly prohibits fertility clinics from permitting the use of sperm or eggs in a manner inconsistent with the consent of either party. This restriction ensures that if one party expresses a desire to discontinue the use of their egg or sperm, the other party will be barred from utilizing the embryo.

Determining Embryo Ownership in Case of Separation

In a notable Western Australian case, G and G [2007] FCWA 80, a couple chose to preserve six frozen embryos during their relationship. Following the end of their relationship, the woman sought the destruction of the embryos, while the man proposed their transfer to his custody for use by another infertile couple. A contractual agreement between the pair stipulated the destruction of embryos in the event of a breakup, and the Western Australian Family Court ruled in favour of discarding the embryos per the terms of this agreement.

In New South Wales, section 25 of the Act mandates that fertility clinics cannot store an embryo without the consent of the “gamete provider” – the individual who supplied the egg or sperm used for the embryo. If the gamete provider doesn’t specify the storage duration, the law presumes a lack of consent. It is crucial to obtain proper documentation from your clinic if you are considering embryo storage, ensuring your intentions are legally recognized.

In the event of separation and the absence of signed forms pertaining to the embryos, resolution options with your ex-partner or through the court include:

  • Mutual Decision for Destruction: Both parties may agree to the destruction of the embryos.
  • Transfer of Ownership to Ex-Partner: Agreement for the ex-partner to take ownership, wherein the non-owner is not legally considered the parent of any child born from the embryos. Genetic considerations may involve counselling in the donation process.
  • Transfer of Ownership to You: Agreement for you to take ownership, especially if the embryos are genetically yours, and considering age-related factors affecting the creation of additional embryos.
  • Agreement for Joint Usage: Agreement to use the embryos and co-parent any resulting child.
  • Court Intervention: If no agreement is reached, filing a court application to seek orders for embryo ownership.

Navigating Ethical Challenges in IVF and Embryo Storage

The landscape of ethical concerns surrounding IVF and embryo storage is complex, with particular relevance to lesbian couples. In scenarios where one partner provides the eggs, but both women in the couple bear a child using those eggs, intricate ethical dilemmas can arise.

Consider the situation where, post-separation, the genetic mother (Woman A) desires to have more children using the embryos created during the relationship, but the non-genetic mother (Woman B) does not consent. Alternatively, if Woman A has donated eggs to Woman B during the relationship, and after separation, Woman B wishes to use Woman A’s eggs, Woman B would become the legal mother while Woman A would lack legal parental status.

Contemplate the potential scenario where either Woman A or Woman B passes away before using the embryos, and the surviving partner wishes to utilize them posthumously. Addressing such concerns may involve incorporating a clause in your Will, specifying legal ownership of embryos in case of death.

These situations have started to emerge in the Family Court of Australia, where women seek orders regarding embryo ownership post-relationship.

Debates arise regarding whether the “best interests” of the embryo should guide decisions on its fate. Some argue for a stance akin to the Family Court’s approach in child-related decisions, considering the embryo’s well-being. However, opposing views contend that legal rights should only be conferred upon children after birth, cautioning against recognizing legal rights for embryos due to potential legal complications.

As this is an evolving legal sphere with limited precedent, proactive measures, such as signing relevant forms with fertility clinics and including specific clauses in your Will, can be pivotal in mitigating potential legal challenges.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.