Who Owns an Embryo? Legal Considerations of Embryo Ownership in Queensland

With the advancements in assisted reproductive technologies, couples seeking to expand their family often turn to in-vitro fertilisation (IVF), leading to the creation of embryos outside the human body. However, the question of “who owns an embryo?” often arises in the unfortunate event of separation or divorce. Queensland, like other Australian states, has specific regulations and ethical guidelines regarding the ownership and use of embryos. In this blog, we delve into the legal intricacies of embryo ownership in Queensland, exploring the process of IVF, consent requirements, and the court's role in determining who owns an embryo. Understanding these legal aspects is vital for individuals seeking to safeguard their reproductive choices in case of relationship breakdowns.

Defining Embryos

In the context of assisted reproductive technology, such as in vitro fertilization (IVF), embryos are formed when one person's sperm fertilises another person's eggs.

This process typically takes place outside the body within a specialised medical facility, where the embryos are carefully cultivated. Once the embryos have reached a viable stage, they are transferred back into the person’s body, where they have the potential to develop further.
During the IVF process, it is common for couples to generate more than one embryo to increase the chances of a successful pregnancy. However, not all embryos may be used immediately, and some couples may choose to store the remaining embryos for future use. The storage of embryos allows couples the possibility of undergoing additional fertility treatments without having to repeat the entire IVF process.

The Role of Fertility Clinics

Fertility clinics play a crucial role in the IVF process, assisting couples with procedures like embryo storage. Before undergoing any IVF procedures, couples are required to sign agreements outlining the procedures, potential risks, costs, and other essential information.

Who Owns an Embryo?: What the Law Says

Legislation on embryo ownership in Queensland is primarily guided by the National Health and Medical Research Council's Ethical Guidelines on the use of assisted reproductive technology (ART). These guidelines form the ethical foundation for most IVF clinical practices in Australia, including Queensland.

According to these guidelines, once an embryo is created, the parties involved in its creation, (typically the intending parents), have the responsibility for its use, storage, and disposal. This means that the ownership and decision-making authority regarding the embryos rest with the parties who provided their genetic material for the creation of the embryo.
However, these national guidelines do not provide specific and detailed directives on how to resolve any disputes that may arise, such as who owns the embryo in the event of a relationship breakdown. As a result, the determination of embryo ownership and usage in these situations often requires legal intervention.

Queensland, like other states in Australia, lacks specific legislation dedicated solely to embryo ownership and IVF-related disputes. If you are looking to use a sperm donor, you will also need to understand and consider the legal implications of doing so.

While Section 60HA of the Family Law Act 1975 addresses sperm and egg donors and children born via artificial conception, it does not recognise donors as the parent unless they are the partner of the recipient. You can read more in our blog post on the parental rights of sperm donors here.

Anyone considering IVF or being a party to an IVF journey (such as being a sperm or egg donor) should carefully consider and discuss their intentions and decisions regarding embryo ownership, not only in the context of potential separation but also in other unforeseen circumstances.

Consent for Use of Embryos

In the absence of clear legislation, clinics usually request couples to provide consent and reach agreements at the outset of the IVF process. These agreements outline how any unused embryos will be managed if the couple separates or faces other life-altering events.
In general, frozen embryos cannot be used without the consent of all parties involved. If disputes arise regarding who owns an embryo or how they may be used, clinics may suspend the expiry of the storage period, ensuring a review every five years. Any subsequent disposal of embryos without mutual consent must adhere to the clinic's policies, which should have been explained to the parties during the initial storage.

Relevant Case Law

While the Family Law Act 1975 does not include specific guidelines on how the Court should handle embryos or determine who owns an embryo in legal disputes, there have been some precedents set in Case Law that sheds light on the matter.

  • G and G [2007] FCWA 80

In this case, the husband changed his outlook at separation, wanting to donate the embryos. The court ruled in favour of upholding the agreement signed by both parties when they were a couple, which stipulated the embryos would be destroyed in the instance of a separation.

  • Piccolo v Piccolo [2017] FCWA 167

In this case, the parties used an egg donor. When the parties separated, the husband wanted to keep the embryos while the wife wanted them to be destroyed. The court considered the absence of genetic connection as a factor in determining embryo ownership rights, allowing the husband to keep the embryos.
These court rulings indicate that the Court tends to uphold the terms and provisions stated in the contracts that couples have with their fertility clinics. In other words, if a couple has signed an agreement with their fertility clinic regarding the ownership and use of embryos in case of separation or other circumstances, the Court will likely enforce it.

Posthumous Reproduction

Posthumous reproduction is another complex aspect wherein sperm is extracted from a deceased individual for future use in fertility procedures. Courts must approve such applications, as doctors and coroners lack the legal power to grant consent.

In Queensland, a recent case involving a woman's bid to have her deceased partner's children showcases the complexities of posthumous reproduction. The woman had to apply to the Supreme Court to obtain an order for the extraction and storage of her partner's testes urgently. Time constraints on the sperm's viability after death necessitate swift court approval for such procedures. Doctors and coroners don’t possess the legal powers to allow extraction without court consent, even if the deceased had provided written consent prior to their death. This is due to legal restrictions on interfering with a dead human body without lawful justification.

If the application for posthumous extraction is approved, another separate legal application must then be made in order to be able to use it for fertility purposes.

The welfare and any intentions of the deceased and any resulting children are crucial factors considered by the court in such cases.

Experiencing Some Challenges with the Ownership of an Embryo or Considering IVF?

Determining who owns an embryo is a significant legal challenge, particularly during separations or posthumous reproduction in Queensland. That’s why it is essential to comprehend the legal implications of IVF procedures and the need for mutual consent when it comes to embryo use and storage. Seeking independent legal advice prior to commencing any IVF journey is imperative to ensure your reproductive choices are legally protected in case of relationship breakdowns or unfortunate circumstances. For personalised guidance and expert legal assistance on matters of embryo ownership, IVF or family law in Queensland, we invite you to contact us at Pullos Lawyers. Our team is made up of a number of experienced, compassionate family lawyers who are experienced across a breadth of intricate family law issues, including LGBTQ+ law, divorce law, child support and property settlement.