A question we encounter as family lawyers is what happens when a couple undergoing IVF in Victoria separates after creating and freezing embryos. This situation often raises complex questions about legal rights and the future of embryos into which both parties have invested significant time, money, and emotional energy.

When a couple has frozen embryos, there are usually three options available:

(1) They may agree in advance that, if the relationship ends, the embryos will be destroyed;

(2) They may agree that, in the event of separation, one partner will retain the rights to the embryos while the other relinquishes theirs; or

(3) They may choose to make a decision about the embryos at the time of separation.

The role of IVF clinic agreements

A couple’s options will often depend on whether they had an agreement in place—usually as part of a contract signed with their IVF clinic. While IVF clinics in Victoria are not legally required to include a clause addressing the treatment of embryos post-separation, many do so to assist both the couple and the clinic in managing these situations.

In cases where the couple discusses their options before embarking on their IVF journey and documents those preferences in the clinic contract, the agreed-upon terms should guide what happens following separation. This could include a directive for the embryos to be destroyed or for the rights to be transferred to one partner.

When there is no agreement or one party changes their mind

In some cases, couples choose to defer the decision about the embryos until the relationship ends. If there is cooperation and mutual agreement at that time, the embryos will be treated in accordance with the new agreement.

Complications can arise where the couple had previously agreed on a course of action, but one party later changes their mind—particularly if a significant amount of time has passed.

Legal intervention or dispute resolution

If required, a party may initiate legal proceedings, seeking court intervention to determine what happens to the embryos. If the parties are unable to agree independently, the matter may ultimately be decided by a judge.

Before turning to litigation, couples may wish to explore mediation as a way to resolve disputes.

How can this operate in practice?

In Leena & Leena [2024] FedCFamC1F 135, the Federal Circuit and Family Court of Australia (the Court) ordered that a former couple’s embryos be destroyed but permitted the wife to personally collect and dispose of them.

The parties, married in 2016 and separated in September 2022, have two children who live with the wife. During their marriage, they decided to freeze embryos created from their own sperm and egg. Following the separation, the husband chose not to have more children and contacted the medical clinic where the embryos were stored, requesting that they be “discarded.”

The wife brought the matter to the Court, submitting that the embryos formed part of the parties’ wider property settlement. She requested that, if the embryos were to be destroyed, she be allowed to collect them and dispose of them herself, with the dignity and respect she believed appropriate. While the parties agreed that the embryos should be destroyed, they disagreed on how this should occur.

The primary question before the Court was whether embryos could be considered property under the Family Law Act 1975 (Cth) (the Act) and whether the Court had the power to make orders regarding their disposition. The Court considered that they may carry property rights due to the genetic contribution and effort involved in creating and storing them.

The Court concluded that embryos can be classified as property. The Court emphasised that embryos are not persons with independent rights but constitute a “bundle of rights” belonging to the parties who created them. It was deemed just and equitable for the embryos to be destroyed, and given the sensitive nature of the matter, the Court allowed the wife to collect and dispose of them personally.

How we can help

At Nicholes Family Lawyers, our team has deep expertise in assisted reproductive technology and the legal issues that can arise from it. We provide tailored, expert advice to help you navigate this emotionally complex and legally sensitive area.

Please contact our office on (03) 9670 4122 to arrange an initial consultation.