Can your embryos be dealt with as ‘property’ by the Family Court when you separate?

The decision of Leena & Leena [2024] FedCFamC1F 135 says yes.

The Leena decision dealt with a situation where the separated parties (the husband and the wife) had embryos created by them stored at a fertility clinic. They both knew they could not use the embryos without the other’s consent. The issue for the Family Court was that:

• The husband directed the clinic to allow the frozen embryos to succumb and then to dispose of them.
• The wife wanted the embryos to be preserved, or in the alternative if they were to be succumbed, she wanted to be able to collect them and dispose of them herself.

In this decision Justice Riethmuller dealt with many issues in this complex area, including:

1. The operation of the Assisted Reproductive Technology Act 2007 (NSW) (‘ART Act’) provides no express right to the person (or people) who created the embryo to recover possession of the embryo from the clinic.
2. Whether the frozen embryos are ‘property’ capable of being dealt within the Family Court’s jurisdiction under section 79 of the Family Law Act 1975 (Cth) (‘FLA’) or in the alternative, can be the subject of an injunction (restraining order) under section 114;
3. A comparative view of Australian family law cases dealing with the issues.

Justice Riethmuller noted the deeply personal nature of gametes and embryos but notes as a matter of law, an embryo is not a person with rights of its own nor is it within the definition of a child (Lee & Hutton [2013] FamCA 745). Rather, in creating the embryos, the parties enjoy “a bundle or collection of rights” in relation to them and they have effective control. Properly construed, Justice Riethmuller makes it clear that stored embryos are subject to property rights, and disputes about this have been dealt with under the common law of contract

The definition of ‘property’ is quite broad under the FLA. His Honour states at [58] that: “although s 79 of the Act was drafted for the purpose of dealing with the more traditional subject matter of property rights, it is worded sufficiently broadly to enable appropriate regard to be paid to the special nature of the embryos. The requirement that any order be “just and equitable” provides a suitable basis to attenuate property rights as may be appropriate in cases concerning embryos.”

This judgment presents tension with the judgment of Justice Penny in G and G [2007] FCWA 80 which ruled that while gametes from an individual were property, embryos consisting of gametes form two people were not property capable of being dealt with under section 79 of the FLA. In Piccolo v Piccolo [2017] FCWA 167, Justice O’Brien found that the court had jurisdiction to make orders with respect to embryos pursuant to section 114 of the Act injuncting one party from dealing with the embryos and relinquishing their rights.

So what happened in Leena?
Justice Riethmuller relied on the decision of Doodeward [1908] HCA 45 as the binding authority in relation to embryos as ‘property’. The Judge referred to the work and skill utilised in extracting, storing and placing them into straws, and noted the process was more invasive and emotionally exhausting for the wife. The Judge found that the embryos were the property of the parties.

Ultimately the orders were for the embryos to be destroyed by the clinic.

What does this mean?
This case has important implications for separating couples who have created embryos. Although the facts are not the same, the principles in this case can be applied to embryos created by a couple but with the genetic material of only one member of the couple (eg a same sex couple).

If you have embryos created, or even stored gametes, the Federal Circuit and Family Court of Australia can make orders about these and you should note:

You can get likely get orders made by consent quickly and relatively easily.

If you have a property settlement, whether by judgment, consent orders or Binding Financial Agreement, you should include any required provision about embryos. Failure to do so may mean you are unable to later seek orders.

When separating, always tell your lawyer about your stored embryos. Your lawyer may want a lot of detail including your contract with the clinic and details about how the embryos were created.

Disclaimer: This article is intended to provide a general understanding of the subject matter. It should not be relied upon as legal advice. For specific legal advice related to your situation, please call Sarah Bevan Family Lawyers 02 9633 6088.