Increasingly, couples struggling to fall pregnant are turning to IVF in an effort to expand their family unit. Due to the advancement and sophistication of IVF technologies, you and your partner have the ability to create and keep more than one embryo. As you navigate your way through the world of IVF, separation will be a distant consideration. However, before you commence IVF, you should consider who owns an embryo in the unwelcome event of separation.


What are embryos?

Embryos are formed when one party’s sperm and one party’s eggs are fertilised. During the process of IVF, embryos are generally created outside a woman’s body and transferred to a woman’s body to grow. Sometimes, couples can generate more than one embryo during the process of IVF. In circumstances where more than one embryo forms, fertility clinics are reluctant to transfer more than one embryo due to the associated health risks. As an alternative, fertility clinics can freeze the remaining embryos for the couples to utilise up to 10 years later.


The role of fertility clinics

Fertility clinics assist parties in the process of IVF and subsequent procedures, such as freezing embryos. Fertility clinics will require you and your partner to sign an agreement before undergoing any procedures. This agreement will set out the procedures, risks, costs and other important information with respect to IVF.


Laws about the ownership of embryos after separation

Separating from your partner in the future is not something you would quickly consider when contemplating IVF or freezing your embryos. However, it is important to consider the impacts of separation, especially in circumstances where you are freezing embryos with a view to using them in the future.


National Guidelines state that once an embryo has been created, the parties for whom the embryo has been created, have responsibility for its use, storage and disposal. On this basis, the ownership of your embryo is a decision which you and your partner must agree upon. Unfortunately, the national guidelines do not assist greatly when it comes to the practicalities of the ownership of embryos after separation.

Case example 1: G & G

In the decision of G and G [2007] FCWA 80(‘G and G’), a husband and wife engaged the services of a fertility clinic for the purposes of freezing embryos (made up of the husband’s sperm and wife’s eggs) which were to be used at later date. The parties entered into a contract which provided for the parties to destroy the embryos, in the event of separation. At the time of separation, the husband wished for the embryos to be donated, whilst the wife sought for the contract terms to be upheld and the embryos to be destroyed. Judge Penny ultimately decided that the contract and the intentions of the parties were to be upheld, and that the embryos were to be destroyed.

Case example 2: Piccolo & Piccolo

In the more recent decision of Piccolo & Piccolo [2017] FCWA 167 (‘Piccolo’), a husband and wife had engaged an egg donor in circumstances where the wife was infertile. Utilising the donors’ eggs and the husband’s sperm, the couple successfully created six embryos and chose to freeze two. The parties entered into a contract which allowed them to make a decision about ownership of the embryos at the time of separation. The parties subsequently separated, and the husband sought to retain ownership of the two remaining embryos, whilst the wife wanted them destroyed. Judge O’Brien ultimately decided that the husband should assume ownership of the embryos in circumstances where the embryos were not genetically connected to the wife and she provided no valid reasons for the embryos to be destroyed.


Your options

Fertility clinics will require you and your partner to enter into a contract when you undergo procedures to freeze your embryos. In the contract, there will generally be a provision for the ownership of the embryos in the event of separation. Three of the common types of provisions are outlined below:

  1. Agree for the embryos to be destroyed (as seen in the case of G and G above);
  2. Agree for one party to retain the embryos and for one party to relinquish their rights to the embryos; or
  3. Agree to decide at the time of separation (as seen in the case of Piccolo above).

Whilst the third option above may be the ‘easiest’ option at the commencement of your IVF journey, it will often become the most ‘difficult’ option in the event of separation. As you can imagine, when parties separate, emotions are heightened, and the decision making process may be clouded by conflict. In light of this, we suggest making decisions with respect to matters such as the ownership of your embryos upon separation, at the start of your IVF journey. This will enable you to avoid the uncertainty of ownership of the embryos at the time of separation.


Ramsden Family Lawyers

Our team of family law solicitors can assist you through the process of IVF and egg preservation procedures. If you require assistance in reaching an agreement with your partner prior to undergoing these procedures, or have separated and wish to retain ownership of frozen embryos, we invite you to contact us on 1300 749 709 to discuss the options available to you. Our family law team would love to assist you.