Who Owns Frozen Embryos When Partners Separate? 3 Deciding Factors

Do you have frozen embryos with a partner you are separating from? You may be wondering who gets custody of these frozen embryos after divorce or separation. The increasing use of in-vitro fertilisation (IVF) reproductive technologies has led to more legal disputes around the use of genetic material when a couple’s relationship breaks down.

In this blog, we will explore three factors that influence ‘who owns an embryo‘ when a couple separates or divorces.

1. Your Fertility Clinic’s Policies

Each Australian state and territory has their own legislation to govern reproductive technology matters and frozen (cryopreserved) embryos. However, decision-makers turn to the agreements entered into by the parties prior to commencement of IVF treatment.

Fertility clinics typically have policies about what is to occur if something unexpected arises during the course of treatment. These policies generally include:

• Maximum Storage Period and Fees: Clinics will outline the maximum period embryos can be stored and the associated fees for ongoing storage.
• Consent Requirements: Even when a relationship is intact, clinics require the consent of both parties to use the embryos.
• Policy Documentation: You can request a copy of the clinical and general consent forms, which will typically set out the clinic’s policy regarding the embryos in the event of death or other occurrences.

2. The Original Clinic Agreement

If you and your ex-partner cannot agree on a pathway forward post-separation, the Court is inclined to give effect to the agreement signed at the commencement of the IVF journey and the clinic policies.

This means, if there is a dispute or legal issue related to the IVF process or frozen embryos, the court will consider the original agreement (such as consent forms, terms regarding embryo storage or usage, etc.) and the clinic’s policies as binding and influential in its decision-making.

Take a look at the leading case of G v G [2007] FCWA 80  below to learn more about how courts handle embryo disputes.

Case Study: G v G [2007] FCWA 80

In this case, a couple had six embryos frozen and stored. When they separated, the husband made an application to the court, seeking to retain the embryos for his use or, alternatively, to donate them. However, the wife wanted them destroyed.

The court placed significant weight on the initial agreement signed by both parties prior to the commencement of treatment, which stipulated that the embryos would be destroyed in the event the parties separated. Ultimately, the court ordered that the embryos should be discarded, adhering to the initial agreement.

3. The Genetic Material of the Embryos

An exception to the standard approach may be made if the embryo contains the genetic material of only one of the parties. The case of Piccolo & Piccolo [2017] FCWA 167 illustrates this point.

Case Study: Piccolo & Piccolo [2017] FCWA 167

In this case, the parties had used an egg donor to freeze two embryos. At the point of separation, there was a dispute about the fate of the embryos. The husband sought to keep the embryos given they contained his genetic material, while the wife sought for the embryos to be destroyed. The court ruled in favour of the husband in this instance, due to the embryos containing no genetic material from the wife.

Again, the court gave significant weight to the agreement entered into by the parties at the commencement of treatment.

Other Unique Circumstances May Influence the Final Decision

When facing the complex and emotional issue of determining the fate of frozen embryos during separation, it is crucial to understand the legal and clinic guidelines, as well as the importance of the initial agreements made. Courts generally uphold these agreements, but unique circumstances can influence the final decision.

Consulting with a family law professional can provide guidance tailored to your specific situation. If you require further assistance to determine ownership of embryos after separating with your partner, call our trusted Family Law team today at (07) 5444 1022

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