Navigating a separation can be tricky, even more so when you have personal items, such as frozen embryos, that you’re not sure what happens to after separation or who is legally entitled to retain them.
The Family Law Act 1975 (Cth) does not currently contain any specific provisions about how embryos are to be treated following separation and the history of case law that deals with the ownership of embryos is not extensive. There are, however, two Australian Family Law cases that have addressed how to determine which party retains ownership of frozen embryos following separation.
The first is the Western Australia case of G and G [2007] FCWA 80. In this case, the parties signed a contract prior to the embryos being stored which stated in the event of separation or death of one of the parties, the embryos would be destroyed. When the parties separated, the Husband wanted to donate the embryos and the Wife wanted to uphold the original contract to have the embryos destroyed. The Court confirmed that the agreement made between parties prior to the storage of embryos would be binding following separation.
The second is Piccolo & Piccolo [2017] FCWA 167. In this case, the parties had used genetic material from the Husband and egg donor to create frozen embryos. The contract the parties entered into allowed the parties to make a decision regarding the ownership of the embryos at the time of separation. When the parties ultimately separated, the Husband wanted to keep the embryos and the Wife wanted to destroy them. The Court found in favour of the Husband because the embryos were not genetically connected to the Wife.
The key takeaway from these two cases is that the terms of any original agreement between the parties and the fertility clinic are prudent to determining how embryos are dealt with after separation. As such, prior to entering into any agreement to freeze embryos, it is important to discuss your future intentions for the embryos with your current partner and obtain independent legal advice as to the terms of any potential contract. Ensuring that your intentions for your embryos after separation is correctly reflected in the contract between you and your fertility clinic will provide you with a greater degree of certainty in the event of separation.
If you’re considering putting embryos into storage, speak to one of our family lawyers today to obtain advice about the terms of your contract and what may happen to your embryos following separation.
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