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Are embryos property? What does family law say about this?

The subject of “are embryos property” was raised in a recent family court case. This may be of interest to those who might be contemplating Assisted Reproductive Technologies (ART), such as IVF.  It may well be worth considering the issues raised in this case, in terms of the legalities around stored embryos.  In the case of Leena and Leena (pseudonyms), the court was tasked with resolving a dispute over the disposal of “succumbed” (no longer viable) embryos.  The broad question was asked:  are embryos property” pursuant to Australia’s Family Law Act 1975?

Are Embryos Property?

In Leena and Leena the wife told the court that she wanted to dispose of their embryos with the dignity and respect she believed was necessary.  As such, she sought orders allowing her to take possession of the embryos (within the so-called “straws” they are contained in) and either put them in an urn containing ashes of another loved one or simply into an appropriately-marked flowerpot as a memorial.   Her application was dismissed, but the case provides a useful discussion around the issue of “are embryos property”. What exactly are an individuals rights over embryos.

The former husband and wife had preserved several cryo-embryos stored at an ART centre and signed the centre’s consent forms and agreement.  Their consent to the centre included a direction that if either party wished, they could “opt out and direct the embryos to be discarded”.  The couple ultimately agreed to allow the embryos to “succumb” as they were no longer planned to be used by the couple, and that decision was reflected in consent orders at an interim stage of the court proceedings.

The embryos had been the product of gametes from the couple and not any other donor, which simplifies matters somewhat.  The husband now wanted the embryos destroyed as per the couple’s agreement with the centre, but the wife now sought that the court allow the embryos to be released to her and placed in her control.  She submitted that the embryos should form part of the parties’ wider property settlement.

What is “property”, and are embryos property?

We all know a house or a car is “property” when it comes to dividing up marital assets after separation or divorce. Right?  But should a human embryo be regarded as “property”?  When considering this, it’s important to note that the idea of “property” in law does not in fact require that the potential property in question is itself a “thing”, like a house or a car. Property refers more specifically to the collection of rights that someone has in relation to something, or a legal relationship with a thing.

In Leena and Leena, the judge noted the difficulty with affording embryos property rights is that “they are deeply personal items, and an embryo (if viable) can grow to become a person. It is for this reason that many are reticent to conclude that property rights exist with respect to embryos”.

Critical question: are embryos property?

In order to form part of the couple’s property settlement, the embryos would have be found to be “property” under the Family Law Act 1975.  If found to be “property”, the embryos could then be subject to orders enabling the court to alter the interests of the parties in that property.  This would occur pursuant to section 79 of the Family Law Act 1975 for married couples, and section 90SM for de facto couples.

Alternatively, if those sections did not apply, according to the judge in this case there still “appears to be” power under section 114 of the Family Law Act 1975 to allow a court to make an injunction in relation to the property of parties to the marriage (noting, though, not between a de facto couple).

If the embryos were not property and able to be subject to family court orders, the only legal remedies available to parties would be enforcement of contractual rights with the ART centre.  This, the judge said, amounted to “leaving an embryo to a fate determined by contracts concerning its creation [and] appears more objectionable than considering it the subject of property rights that are appropriately attenuated to recognise the unique nature of an embryo”.

The judge considered how tissue or body parts are treated internationally and in Australian cases, noting the advances in science over the last decades that have vastly increased the number of human tissue items being stored, and the need for resolution of many similar disputes.

Conclusion – so, are embryos property?

Although parties who store their embryos have more limited rights than with other sorts of property – for example, embryos cannot be sold – it was noted:

“Property rights are not limited to items that are tradable or have a market value: for example, they are frequently relied upon to determine rights to items of significant emotional value with no resale worth such as wedding albums, a baby’s sonogram, a child’s first tooth, a keepsake from a trip, or a great grandmother’s letters.”

The parties still had effective control over the embryos, regardless of the fact the embryos were stored with a third party:

“The rights afforded to the parties include the parties’ entitlement to give consent to storage, to request directions be made with the stored embryos and dictate the period to which the embryos are stored. They also enjoy negative rights, such as forbidding their embryos being used in certain ways without their direction, such as implanting them, donating the embryos to other persons, or donating them to research.”

“The ‘bundle of rights’ that the parties can exercise indicate that the stored embryos are appropriately the subject of property rights… By allowing a person property rights over an embryo, the law does not convert an embryo into something equivalent to a chattel but provides a suite of rights to those who have created the embryo.”

Couples pursuing ART procedures might like to discuss these issues with their family lawyer, and importantly, bear in mind the conclusion of the judge in this case:

“A relevant, but not decisive consideration, is the agreement of the parties reached at the time they caused the embryos to be created.”

In other words, care needs to be taken in entering private agreements and contracts, to ensure that there is not a false sense that such agreement is inalterable, if a party is later able to claim control over embryos in a property settlement.

If you would like advice in relation to a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

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Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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