Using Frozen Embryos After a Separation

Advances in assisted reproductive technology (ART) have led to significant legal and ethical challenges. One dispute that can be particularly contentious is the fate of frozen embryos, composed of the genetic material of two people, who were once a couple but who subsequently separate. Disputes over ownership and use of the stored embryos raise complex legal questions regarding consent, ownership, and the rights of both parties. In Australia, embryo use is governed by federal and state legislation, as well as guidelines set by the National Health and Medical Research Council (NHMRC). Courts have had to balance the interests of both parties, often weighing the right to procreate against the right not to become a parent against one’s will. This article examines the legal framework surrounding the use of frozen embryos post-separation in Australia, relevant case law, ethical considerations, and potential legal reforms.

Contracts

Many ART clinics that harvest genetic material put in place consent agreements that specify what happens to stored embryos in the event of separation, loss of decision-making capacity, or the death of one of the donors. The existence of such an agreement is likely to be crucial in determining the eventual fate of the embryos.  

Legislation

At a federal level, assisted reproductive technology in Australia is regulated by the:

• Family Law Act 1975, which applies to parenting disputes and property matters but does not explicitly refer to frozen embryos; and
• the Prohibition of Human Cloning for Reproduction Act 2002 and the Research Involving Human Embryos Act 2002, which regulate the use of human embryos for research but do not address ownership disputes post-separation.

More relevantly, each state and territory have its own legislation regulating ART and the use of embryos, such as the Assisted Reproductive Treatment Act 2008 in Victoria which requires written consent from both parties before an embryo can be utilised.

Guidelines

The National Health and Medical Research Council (NHMRC) Guidelines (NHMRC) provide ethical guidance for former couples. Though these guidelines are not legally binding, they may well prevent the use of the embryos by clinics that subscribe to these guidelines. The NHMRC advises that stored embryos should not be used without the written consent of both parties. Clinics are required to obtain explicit agreement before proceeding with any reproductive treatment using stored embryos.

Consent and ownership of embryos

The common legal principle across Australian legislation dealing with the topic is that both parties must give their ongoing consent for the use of embryos, meaning one party cannot unilaterally decide to implant an embryo post-separation.

The timing of the consent is a critical issue here. At the time of embryo creation, both parties typically sign consent forms outlining their current agreement regarding the storage and use of the embryos. These agreements often include provisions for what should happen in the event of separation or divorce. However, Australian law requires ongoing consent, meaning that either party can withdraw their consent at any time before implantation. Even if a couple initially agreed that the embryos could be used, one party has the right to change their mind post-separation.

Who “owns” the embryos?

Embryos are typically considered property under Australian law, albeit a special category of biological material with unique ethical considerations. Since embryos involve genetic material from both parties, courts have generally upheld the principle that both must consent to their use, which suggests a joint ownership.

In most cases involvingfrozen embryos, the legal dispute is over two competing rights:

• The right to procreate: The party wishing to use the embryos may argue that they should be allowed to pursue parenthood, especially if this is their only viable pathway.
• The right not to procreate: The other party may argue that forcing them to become a biological parent against their will infringes upon their reproductive autonomy.

Australian courts have consistently prioritised the right not to procreate, ruling that no one should be compelled to become a parent against their will.

Due to this joint ownership, if embryos cannot be used due to lack of consent, they may be:

• destroyed after a legally mandated storage period (usually 5-10 years, depending on the jurisdiction)
• donated to another couple (but only if both parties consent)
• donated for scientific research (subject to additional ethical and legal approvals).

In many cases, former couples struggle to reach an agreement, leading to embryos being left in indefinite storage.

The Family Court of Western Australia heard a relevant case in G v G [2007]. This case centred around the question of whether a husband could donate six frozen embryos or whether they should be destroyed. The couple had frozen embryos in case they needed assistance having a child. At that time, the couple signed an agreement indicating that the embryos should be discarded if they separated. The court held that as the embryos could not be used for their stated purpose, they should be destroyed in accordance with the terms of the original agreement.

The use of frozen embryos after a separation remains a legally and ethically complex issue in Australia. The principle of ongoing consent is firmly established, meaning that as the law currently stands embryos cannot be used without both parties’ agreement. Courts have consistently prioritised an individual’s right not to procreate, even in cases where one party deeply desires to have a child. For any advice about using frozen embryos, or any other family law matter, please get in touch with Go To Court Lawyers on 1300 636 846.