Last year it was reported that Australia had reached the milestone of 1 in every 18 babies being conceived from IVF procedures which was a steady increase from previous reporting years. While experts are hesitant to suggest the trend will continue – the “Covid effect” has made predictions difficult – it is at least clear that the number of families undergoing treatment has gone up and IVF is more common than a lot of people have realised.
It is then inevitable that complications can arise when couples who are paying for the storage of frozen embryos go through a separation, as embryos have not been found to meet the legal definition of ‘children’ or ‘persons’ for the purpose of the Family Law Act. This would prevent the Court from making any orders under the parenting provisions of the legislation.
Since embryos can be successfully stored for years and the common policy for medical centres is to require the consent of both parents for any action to be taken, what happens if the parties cannot agree?
The recent decision in Leena has shed light on the situation which was focused on who ought to take possession and organise the final ‘disposal’ of embryos that had already succumbed. After an examination of the evidence including the nature of the storage, it was found that embryos can be considered ‘property’ – the same definition as assets such houses and cars – and therefore that the Court does have the jurisdiction to make orders.
Interestingly, while the wife was considered to have contributed more towards the embryos than the husband due to the invasive and more emotionally exhausting process of extracting ova than sperm collection, neither parent had the embryos delivered to them.
The effect of this decision is that the definition of property just got bigger. Embryos, much like the family pet, can be considered property even when a notional value of $0 is adopted and people who have been through IVF and now find themselves going through separation should have mature negotiations with their ex-spouse as to how these embryos should be treated. If they cannot agree on this, it’s comforting to know that the Court can at least make the decision for them.
Joshua Noble is an Accredited Specialist in Family Law working at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes practising from our Cleveland offices at Suite 3, Jade Chambers, 15 Middle Street, Cleveland. To contact Josh for advice, please phone (07) 3385 0999 to schedule an appointment.
The information in this article is merely a guide and not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.