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Using Frozen Embryos After a Separation

So when things were good, you and your former partner underwent IVF treatment in the hope of creating a family and some embryos remain in storage.  Then your relationship broke down. Can either of you use the frozen embryos after separation?

In the above situation, the first point of enquiry would be with the clinic where the embryos were created. It may have policies that apply to your situation and you may have signed a contract with them before the treatment occurred, which documented what you each intended to happen to the stored embryos in the event either of you passes away, loses decision-making capacity or if you separate.

National Health and Medical Research Council guidelines

The National Health and Medical Research Council has also released ethical guidelines on the use of assisted reproductive technology which outline the requirement for valid consent to be obtained from all parties for each specific procedure. The requirement to seek consent is ongoing.  The guidelines also require clinics to have clear policies for managing disputes that may arise between individuals for whom an embryo is stored.

Consent must be given to use frozen embryos after separation

In general, frozen embryos cannot be used for reproductive purposes unless all parties provide consent to the proposed treatment or procedure. If a dispute about the use of frozen embryos arises, the National Health and Medical Research Council guidelines provide that the clinic may suspend the expiry of the period of storage specified in its consent form at the request of either party, that the suspension should be reviewed by the clinic every five years, and that any subsequent discard of the embryos (without the consent of both parties), must be in accordance with the clinic’s policies, which should have been explained to the parties before the storage initially occurred.

When an individual does not have the capacity, or is not able, to provide valid consent to a treatment or procedure, a representative (as defined by relevant legislation, or as identified by the Ethical Guidelines) must be involved in the discussions and decision-making.

In addition to the clinic’s policies and the guidelines referred to above, the state you live in may have legislation regarding the use of artificial reproductive technology which you should discuss with a lawyer to fully understand your position.

Case law on use of frozen embryos after separation

There are very few cases on the use of frozen embryos after separation, or in the absence of the consent of both parties.  Some relevant cases are:

G v G

The 2007 Family Court of Western Australia decision of G v G, which considered whether six frozen embryos should be allowed to succumb (be destroyed) or whether they should be placed under the control of the husband, who wanted to donate them. The embryos had been created by the parties for the purpose of allowing them to fall pregnant if they could not do so naturally.

The parties had signed a form with their clinic prior to receiving treatment, which indicated that their intention at that time was that the parties elected that the embryos be discarded in the event of their separation. The court held that the terms of the agreement between the parties about the use of their embryos should be implemented as the parties had now separated and the embryos could no longer be used for the purpose for which they were created.

Orders were made requiring the husband to sign all such documents necessary to authorise the clinic to allow the embryos to succumb, and in the event that he refused to do so, authorised a Registrar of the court to sign on his behalf.

Cases concerning parentage

The New South Wales decisions of Ganter v Whalland (2001) 54 NSWLR 122, and P v P (1997) FLC 92-790 deal with parentage when a child is conceived through in vitro fertilisation. These cases make it clear that it is the consent and relationship of the parties at the time of treatment, rather than at the time that fertilisation or conception occurs, which determines parentage.

Use of frozen embryos after separation by a former partner

If your former partner agrees to the use of the frozen embryos you created together in a context you do not agree with you should seek legal advice on your options. You should also consider the potential long-lasting consequences of each option, both for you and also for any child born of the proposed treatment or procedure before making any decisions.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Leanne Stuchbery - Senior Associate - Brisbane

This article was written by Leanne Stuchbery - Senior Associate - Brisbane

Leanne holds a Bachelor of Laws and a Bachelor of Legal and Justice Studies from Southern Cross University and a Graduate Diploma in Legal Practice, Skills and Ethics from Griffith University. She was admitted as a solicitor in the Supreme Court of Queensland and the High Court of Australia in 2005. Leanne has practiced predominantly in family law, but also...

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