This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

Reproductive Technology and Separation


Every year tens of thousands of Australian couples seek assistance through reproductive technology to conceive. One in twenty-five children is now conceived using in-vitro fertilisation. Embryos are created through reproductive technology, frozen and stored. Sometimes a couple separates or divorces after the embryos are created. What happens to the frozen embryos after a couple’s separation?

Ethical guidelines on reproductive technology

The Family Law Act does not cover reproductive technology and separation. However, the ethical guidelines on the use of assisted reproductive technology in clinical practice and research 2007 are used by most assisted reproduction facilities using reproductive technology such as in-vitro fertilisation clinics (IVF clinics).

Most reproductive technology clinics will require patients to consider situations that may occur after embryos have been created and provide consents for what will happen to the embryos in those situations. For example, you may be required to consider and make a plan for the situation where you have completed your family, but embryos remain. You may also be required to plan for a situation where one partner dies, or you separate or divorce. Some of the options available for these situations include:

  • Donating the embryos to a couple who cannot have their own children;
  • Giving the embryos to science; and
  • Destroying the embryos.

Australian cases on reproductive technology and separation

In Australia, there has not been a lot of case law decided in this area. However, the existing case law has shown the Family Court is likely to honour agreements or consent that was given at the beginning of treatment. G and G [2007] FWCA80, was a Family Court matter decided in Western Australia. Six frozen embryos remained after a relationship came to an end. The woman wanted these eggs destroyed. However, the man sought custody of the eggs so that he could allow another infertile couple to use them. The agreement made at the beginning of the treatment stated that the eggs would be destroyed if the relationship ended. Following the agreement, the Family Court determined that the eggs should be destroyed. The purpose for which the eggs were created were also noted in the judgment. They were created so that the woman would be able to become pregnant. It was noted that this purpose could no longer be achieved.

A case decided in Victoria in 2013, HA v Patient Review Panel (Human Rights) [2013] VCAT 1628, considered a situation where consent for a certain action had not been obtained by one party at the beginning of treatment. In this case, a couple had separated, and one party wanted to extend the time that the eggs were to remain in storage. The Victorian Civil and Administrative Tribunal, in this case, allowed the embryos to be frozen for a further five years. It noted that although the former male partner had not given consent to the extension, he had signed a consent at the beginning of the treatment to have the embryos frozen. The Tribunal found that there were reasonable grounds for the extension and also that this decision would not have a negative impact on either party of the former relationship. Freezing the embryos for a further five years would allow more time for consent to the use of the embryos to be obtained from the former partner.

International cases on reproductive technology and separation

In an English case, Evans v Amicus Healthcare Ltd & Ors; Hadley v Midland Fertility Services Ltd & Ors [2003] 4 All ER 903, two women brought a joint claim against their former partners to gain custody of the embryos which had been created during their relationships. The men had consented at the beginning of the reproductive technology process to “treatment together” and no other purpose. The High Court did not allow the women’s applications, for among other reasons, that the consents of the men were no longer effective as treatment was no longer being conducted together.

Szafranski v Dunston, 2015 IL App (1st) 12275-B, was a decision from the United States of America where the relevant parties underwent a reproductive technology process together, and three embryos were made. Before treatment, the parties had a verbal agreement with one another where the woman would have rights to the embryos if the couple separated. The woman then had chemotherapy relying on the verbal agreement. This treatment was expected to affect her fertility. The couple then separated and then the parties disagreed about what should happen to the frozen embryos. The woman wanted to keep the embryos, and the man wanted them to be destroyed. The court, in this case, ended up awarding sole custody of the embryos to the woman as they were most probably, her last and only opportunity to have her own biological child.

Conclusions

What can be learned from the above cases is that prior to undergoing a reproductive technology process such as an IVF treatment, it is important to consider situations that may occur. The consents that are given at the start of the treatment will most likely hold weight in a court determining the fate of frozen embryos. The purpose for which the embryos were created may also be considered by a court. It is advisable to obtain legal advice before entering into a reproductive technology process. Particular consideration should be given to what should happen to frozen embryos should you end up separated or divorced from your partner.

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

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