By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
Embryo disputes, particularly those involving assisted reproduction technology (ART), present unique legal and emotional challenges in family law. When couples who have undergone fertility treatments decide to separate or divorce, determining the ownership and future use of stored embryos becomes a significant issue.
Legal Framework
In New South Wales, the Assisted Reproductive Technology Act 2007 (ART) governs the storage and use of embryos. This legislation mandates that parties provide written consent regarding the duration of embryo storage and what happens in the event of separation.
Disputes about embryo ownership fall under the Family Law Act 1975 (Cth), as Australian law treats embryos as property rather than individuals. This classification shapes how courts resolve disputes and allocate rights between parties.
Under Section 79 of the Family Law Act 1975 (Cth), the court can alter the interests of parties in the property of the marriage, including embryos. This alteration considers factors such as financial contributions, non-financial contributions (e.g., caregiving or homemaking), future needs of the parties, and the circumstances surrounding the embryos’ creation.
Considerations for Individuals
For those facing separation or divorce with embryos in storage, several factors should be carefully evaluated:
- Intentions at Creation: It’s crucial to consider both parties’ intentions when the embryos were created. Documenting any agreements or discussions about the embryos’ use can significantly influence legal outcomes. Reviewing the documents signed before undergoing IVF, often retained by the IVF clinic, is a good starting point.
- Practical and Emotional Impact: The decision about the use or disposal of embryos has profound practical and emotional implications for both parties. Consider factors such as future parental responsibilities, personal beliefs, and the impact on future relationships.
- Legal Guidance: Early legal advice is essential to understand your rights and options under Australian family law. A family law expert can provide clarity on the legal process, potential outcomes, and strategies to protect your interests.
At Conditsis Lawyers, we specialise in navigating complex family law matters, including embryo disputes. Our team has extensive experience handling sensitive issues related to assisted reproduction and understands the nuanced legal considerations involved.
If you are facing an embryo dispute or contemplating your options following separation or divorce, contact Conditsis Lawyers today to schedule a consultation and take the first step towards resolving your embryo dispute with confidence.
