Who owns your embryos
A FERTILISED EGG is KNOWN as an “EMBRYO”. Sperm and eggs are known as “gametes” prior to fertilisation. Embryos are implanted in a woman’s uterus to achieve pregnancy. As only one or two embryos are implanted at a single time to prevent multiple births, any remaining embryos can be frozen for use in the future.
It’s a good idea to think about embryos when doing your family planning.
Storing your embryos
New South Wales law previously imposed a ten-year limit on storing frozen embryos, requiring any that were stored after this time to be destroyed. However, the government changed the law in 2015 after receiving complaints from women who argued that they were being forced to unnecessarily destroy embryos. There is now no longer a time limit for the storage of frozen embryos, meaning that they can be stored indefinitely. It is estimated that there are currently 120,000 frozen embryos in storage around Australia.[i]
Your circumstances may change over the course of many years. Relationships may come and go, other children may be conceived, or you or your partner may lose interest in having children altogether. In these types of situations, you must then consider what to do with any frozen embryos you have.
When undergoing IVF treatment, most fertility clinics now will require you and your partner to sign a document which specifies what will happen to frozen embryos in the event of a relationship breakdown (i.e., who will retain ownership of the embryo). Therefore, it’s a good idea to think about this and discuss it with your partner if you have one before beginning the IVF process.
The use of frozen embryos in NSW is regulated by the Assisted Reproductive Technology Act 2007 (NSW) (the Act). Section 19 of the Act prohibits a fertility clinic from allowing sperm or eggs to be used in a manner that is inconsistent with either party’s consent. This means that where one party says they no longer want their egg or sperm used, the other will be prevented from using the embryo.
Reciprocol IVF - Getting pregnant with your partner's eggs
Lesbians have the option of choosing to get pregnant using their partner’s egg and their chosen donor sperm. It is often described as a way to make both mothers feel connected to and a part of their baby’s creation. It also may be carried out in situations where one mother is unable to carry a child due to medical conditions i.e. born without a uterus, hysterectomy, serious illness etc, or simply when one party does not wish to carry a child.
If you decide that this is the path you would like to venture down, then you will need to discuss this with your chosen fertility clinic. Each clinic may have their own specific procedures to follow, which will include counselling.
If you and your partner are in a de facto relationship, and you both consent to the conception procedure, then it is irrelevant from a legal point of view, which mother is carrying the child and which mother’s eggs are being used. Both mothers have legal status as a parent and an “intended parent”.
You should ask your fertility clinic whether you are eligible for the Medicare rebate, as you would need to be classed as medically infertile. Some clinics may not deem you to be medically infertile unless there is a medical condition preventing you or your partner from getting pregnant.
Who gets the embryos if you separate
In the Western Australian case of G and G  FCWA 80, a man and a woman decided to store six frozen embryos during the course of their relationship. When that relationship came to an end, the woman sought to have the embryos destroyed, but the man asked for them to be transferred to his custody so another infertile couple could use them.
The pair signed a contract agreeing that they would destroy the embryos if they split up and the Western Australian Family Court found that the embryos should be discarded in accordance with the terms of this agreement.
In NSW, section 25 of the Act prohibits fertility clinics from storing an embryo unless they have the consent of the “gamete provider” – the person who supplied the egg or sperm used to produce the embryo. In the event that the gamete provider does not specify the length of time that an embryo should be stored, the law presumes they have not consented to it being stored. Make sure if you are interested in embryo storage that you get the proper paperwork from your clinic so your wishes can be followed through.
If you and your partner separate and you haven't signed any forms dealing with the embryos, then you would need to work through this with your ex-partner, or the court. The possible scenarios are:-
You may both decide that you don't want the embryos used and agree to destroy them.
You may agree for your ex-partner to take ownership of the embryos. This means that if your ex-partner has a child using these embryos, you are not considered a legal parent of that child. If they are your genetic embroys then you would both need to have counselling in the donation process.
Your ex-partner may agree for you to take ownsership of the embryos. You may prefer this if the embryos are genetically yours and given your age you may not have any eggs left to create more embryos.
You could agree to use the embryos and co-parent any child born from the embryos.
If you can't agree on what happens with the embryos, then you may need to file an application with the court seeking orders for ownership of the embryos.
There are many ethical issues around IVF and embryo storage. This can be particularly relevant to lesbian couples where one party is the egg provider, but both women in the couple have carried a child and given birth to a child from those same eggs (Woman A has carried using her own egg and her partner, Woman B, has carried using Woman A’s egg).
On separation, the lesbian who is the egg provider (Woman A) may decide she wants to have more children. However, the non-genetic mother (Woman B) may not consent to her ex-partner (Woman A) using the embryos created during their relationship.
Likewise, what if after separation, Woman A has donated eggs to Woman B during the relationship, and Woman B decides after the relationship has ended to use Woman A’s eggs? Woman B would be the legal mother of the child of whom Woman A is the genetic mother, but Woman A would have no legal parental status in relationship to the child.
What would happen if either Woman A or Woman B died before using the embryos and the other partner wanted to use them after her death? You might consider adding a clause in your Will to specify who would have legal ownership over your embryos in the event of your death.
These types of situations are now coming before the Family Court in Australia and women are seeking orders relating to the ownership of embryos created during the relationship.
Some people argue that the “best interests” of the embryo should be considered when determining whether or not it should be destroyed. This would essentially adopt the position of the Family Court in making decisions about children. But this view has been opposed by some who argue that legal rights should only attach to children once they are born, or at least much later in the development process, and that recognising an embryo’s legal rights would give rise to many other legal issues.
This is an emerging area of law, given that new medical techniques are being developed and the law is trying to catch up. We have only just started to see these cases coming through the court system now so there is very little precedent to rely on.
The best way to try and avoid any potential legal issues is to ensure you have signed the appropriate forms with your fertility clinic and include a clause in your Will.
Summary of Main Points:
There is no longer a time limit for storing frozen embryos.
You can get pregnant using your partner’s eggs and both you and your partner may have legal status as the parent and “other intended parent”.
Clinics require partners who receive IVF treatment and want to freeze embryos to sign paperwork as to what they want to do with the embryos in the event of a separation.
The court is unclear as to the “rights” of embryos as this is an emerging area of the law.
[i] Kimmorley, S, “NSW Health Has Extended Storage Limits On Frozen Embryos To Take The Pressure Off IVF Parents”, Business Insider Australia, (January 2015), viewed 4 October 2016, http://www.businessinsider.com.au/nsw-health-has-extended-storage-limits-on-frozen-embryos-to-take-the-pressure-off-ivf-parents-2015-1
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at firstname.lastname@example.org.