Family & Divorce

Who Owns an Embryo?

TGB's Virginia Bui discusses whether it is possible for one person to own an embryo given that an embryo is formed from two people.

We are fortunate enough to live in a day and age where scientific advances are now giving people who were traditionally unable to have children that very opportunity.  Those newfound technologies gives rise to a host of legal issues concerning ownership of gametes, legal parentage and the rights of donors under the complex network of legislation and other regulations which govern this area.

This blog post will consider whether it is possible for one party to own an embryo given that an embryo is formed from the gametes of two people.

The Legislation relating to Assisted Reproductive Treatment

In South Australia, IVF treatment is governed by the Assisted Reproductive Treatment Act 1988 (SA) (“the ART”) and the Assisted Reproductive Treatment Regulations 2010 (SA).  The ART and its accompanying regulations only address the provision of assisted reproductive treatment and are silent on the issue of ownership of sperm or ovum.   

On a national level the Australian Government National Health and Medical Research Council have published guidelines entitled Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007 (“the Guidelines”).  Whilst these Guidelines are not legally binding, they have been relied upon in previous decisions of both State and Federal Courts when dealing with issues arising out of sperm donation.

Clause 6.14 of the Guidelines states that:-

At any time before insemination or fertilisation, gamete donors may vary or withdraw their consent to donation.

Once fertilisation has taken place, the persons for whom the embryo has been created have responsibility for decision making about its use in their own reproductive treatment and the medical care of the embryo (both before and after implantation into the uterus), storage and disposal.”

A consistent view is echoed on the website of which states that:-

Sperm donors are free to withdraw at any time unless the sperm has already been used; the term “used” includes the creation of an embryo via a donated sperm and donor insemination procedure.”

Given the need for guidance on the topic, there surprisingly does not appear to be any significant assistance offered in South Australian case law.  There is some guidance in decisions both in Australian and international Courts which are discussed below.

Australian decisions

In the Western Australian decision of G and G [2007] FCWA 80 the husband and wife created embryos which were then frozen and stored with the intention of future use.  The parties had entered into a joint contract with the fertility clinic whereby they elected for the embryos to be destroyed if they separated.  Soon after the procedure was carried out, the parties separated and a dispute ensued as to the fate of the embryos.  The wife wished to uphold the terms of the contract whereas the husband wished for the embryos to be donated.  Ultimately the Judge held that the embryos should be destroyed and said:-

“…the embryos were created for a purpose to enable [Mrs G] to fall pregnant at a later date…The embryos should be allowed to succumb as the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embryos.”

International decisions

The English High Court (Family Division) decision of Evans v Amicus Healthcare Ltd & Ors; Hadley v Midland Fertility Services Ltd & Ors [2003] 4 All ER 903 involved a joint claim by two women to use the frozen embryos produced with their respective partners after the breakdown of their relationships.  Their partners sought that the embryos be discarded whereas the women wished to retain the embryos.  The High Court dismissed the women’s application based on a number of reasons, including that the men’s original consents to the treatments were no longer effective as the couples has consented to “treatment together” and for no other purpose.

A different approach was taken in the recent American decision of Szafranski v Dunston, 2015 IL App (1st) 122975-B where the parties entered into an agreement to undergo IVF together from which three embryos were created.  Prior to the procedure taking place the parties had an oral agreement whereby the defendant would have rights over the embryos if their relationship broke down.  Upon reliance of this agreement, the defendent then underwent chemotherapy treatment which was expected to affect her fertility.  When their relationship ended the parties could not agree on the use of the embryos with the plaintiff seeking that they be destroyed and the defendant seeking rights to use them.  In this case, the Court awarded the defendant the sole custody and control of the eggs on the basis that the embryos represented her “last and only opportunity to have a biological child with her own eggs.”

The Guidelines and these decisions seem to place an emphasis upon the initial intention of the parties involved where disputes later unfold.  It also seems that a contractual agreement (if in existence) will also be a substantial consideration for a Court when determining matters of this nature.

This is only one of the many complex issues which can arise and it is highly recommended that specialised legal advice be obtained.

TGB is a leading Australian law firm with expertise in Assisted Reproductive Technology. Contact your nearest TGB office for advice.