Who decides what happens to embryos after separation?

Advances in assisted reproductive technology have created new legal issues for separating couples, including disputes about what should happen to frozen embryos created during a relationship.

For couples who have undergone fertility treatment, separation can create a difficult situation where one person wishes to use the embryos to have a child, while the other person does not consent. These disputes involve complex questions about consent, reproductive choices and the interests of both parties.

Are frozen embryos property?

Frozen embryos do not fit neatly within traditional legal categories. They are not treated in the same way as ordinary property because they have the potential to become human life. Courts have recognised that embryos involve unique considerations beyond financial ownership.

The key issue is generally not who “owns” the embryos, but whether one person should be permitted to use, destroy or dispose of them against the wishes of the other person.

The importance of consent

Consent is central to disputes involving frozen embryos.

Assisted reproductive treatment generally requires both parties to provide consent before embryos can be created, stored or used. Consent may also be withdrawn in certain circumstances.

A person who does not wish to become a parent generally cannot be compelled to use embryos to create a child against their wishes.

For this reason, agreements entered into with fertility clinics regarding the storage and use of embryos can be highly relevant when disputes arise.

Competing interests

Embryo disputes often involve competing interests between the parties.

One person may argue:

• they wish to use the embryos to have a biological child;
• they may have limited opportunities for future fertility treatment; or
• destroying the embryos would prevent them from becoming a parent.

The other person may argue:

• they do not wish to become a parent;
• they should not have future financial or legal responsibilities for a child they did not consent to have; or
• their reproductive choices should be respected.

The Court must balance these competing interests carefully.

How does the Court approach these disputes?

Australian Courts have considered disputes involving frozen embryos and have generally placed significant importance on the right of a person not to become a parent against their wishes.

Factors that may be considered include:

• whether there was an agreement between the parties;
• the terms of consent forms completed with the fertility clinic;
• whether either party has changed their position;
• the parties’ reasons for wanting to use or preserve the embryos;
• the possibility of alternative options for creating a biological child; and
• the impact on each party if the embryos are used or destroyed.

The Court does not decide these matters by simply determining which party has the stronger desire to use the embryos. The focus is on balancing the competing interests and respecting each person’s autonomy.

What happens to the embryos?

Possible outcomes may include:

• continued storage of the embryos;
• destruction of the embryos in accordance with clinic requirements;
• an agreement between the parties about future use; or
• Court orders determining how the dispute should be resolved.

The outcome will depend on the circumstances of each case and the evidence available.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

← Back to Family Law Explained