The Assisted Reproductive Technology Act 2007 (ART) is the primary law in NSW regarding the use and storage of embryos. The Act provides that upon agreeing to store embryos, the parties should ensure that they provide written consent which stipulates how long they intend the gametes to be stored, the purpose of the embryos being stored, and what would happen to the embryos upon the separation of the couple. Without written consent executed following required counselling sessions and professional advice addressing these issues, ART providers are instructed by the Act to not store a gamete or embryo. The majority of IVF clinical practices follow the Assisted Reproductive Technology ethical guidelines. Subsequently, IVF clinics are obliged to obtain consent regarding what will happen to the embryos in various circumstances. Generally, unless there is compelling evidence opposing the agreement being upheld, the Court is likely to refer to the original agreement signed prior to participation in IVF.

There are few Australian precedents which deal with the ownership of embryos post-separation of the parties. This Western Australian decision of G and G [2007] FCWA 80 was one of these few Australian cases which addressed who has the possession of the embryos in the event of a relationship breakdown. This case was indicative of the Court’s stance the original agreement made prior to the storage of the embryo will be binding. In this case, six embryos were put in storage during the course of the relationship. The contract signed by the couple prior to IVF indicated that in the event of the relationship breaking down, the embryos would be destroyed. When the relationship ended, the husband made an application to the Court to be granted sole custody of the embryos, or to donate them to infertile couples. The wife, however, wanted the embryos to be destroyed. The Court ruled that the original agreement be upheld, which stated that upon death of one of the parties, or separation between the parties, the embryos were to be discarded. The Court also considered that the embryos were stored for the purposes of the wife falling pregnant, and that this purpose would not be met due to the separation. The embryos were thus discarded as per the original agreement.

Your first point of contact after your relationship breaks down would be the IVF clinic where the embryos were created – they would be able to advise you on any contract you may have signed prior to IVF, and how the contents of the contract affect your intentions. Otherwise, in the event of separation, the clinic usually will ‘lockdown’ the embryos until there is renewed consent from both parties – you will not be able to proceed with any action regarding the embryos without such consent from the other party. Alternatively, you can seek advice from your family lawyer in relation to options outside of this.

Essentially, any agreements made regarding the embryos must have confirmed consent by the parties, both when the agreement is initially made, and renewed after the time of the separation. It seems that in Australia, it is safest to refer to the initial agreement made and signed to determine what the next steps should be and what the likely outcome would be should you proceed to Court.

If you require further assistance on this topic, please contact one of our family lawyers on 1300 749 709.