This was published 7 years ago
Who owns the embryo when you die or divorce?
Who owns your eggs, embryos or sperm if you divorce or die?
Each year thousands of people undergo fertility treatment in Australia but what rights do you have to your biological tissue, in life and in death? Who owns your eggs, embryos or sperm if you divorce or die?
Ownership of embryos can become a contentious issue in the event of divorce or death.
Last week a Queensland woman won a court order to remove her dead partner's testes in a bid to have his children in the future.
She had to apply to the Supreme Court to allow the sperm to be extracted and stored. It was an urgent appeal as there are time limits on the sperm's viability after death. The courts must approve these applications as doctors and coroners don't have the legal powers to allow this, even if the man had signed written consent before his death. The rationale is that it's a criminal act to interfere with a dead human body without lawful justification.
Once the sperm has been stored then begins another legal process involving a separate application to the court to deal with how the sperm can be used, i.e. in a fertility process.
The welfare and interests of the child born as the result of any procedure will be taken into account by the court, as will the intentions of the deceased. If consent can be inferred (by words or conduct – were the couple undergoing IVF already? Had he told his family or friends he wanted children?) the court will see that as favourable in allowing the procedure.
The legal battle between Modern Family actress Sofia Vergara and her former partner Nick Loeb, both claiming ownership of their frozen embryos after their breakup, highlights another important issue: what happens in divorce?
The legislation varies between Australian states however the national Assisted Reproductive Technology guidelines form the ethical basis for most IVF clinical practices.
Basically, upon agreeing to participate in IVF, the clinic will get you to consent to what will happen in various instances including the breakdown of relationship, when there are left over embryos after completing your family, or if one of you dies. This will be upheld unless there is a compelling argument made in court. A Western Australia Family Court ruled in favour of a woman who wanted embryos discarded after her divorce. Her former partner felt it was his last chance for children and wanted the embryos to be used in a surrogacy. They had signed an agreement at an IVF clinic.
Access to children created by donated eggs and sperm is another complicated area of law that is currently under the spotlight. A woman in Sydney is claimed to have faked a miscarriage of a donor-conceived child in order to allegedly avoid having contact with the genetic parents.
Establishing consent is central to these disputes about the ownership of your biological tissue. Fast-moving developments in reproductive technology are creating huge challenges for courts around the world. We recommend you seek independent legal advice to ensure your wishes are clear, and legally binding, in the event of a divorce or death.
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Alison and Jillian Barrett are both principals at Maurice Blackburn Lawyers. The Queensland sisters are experienced lawyers and passionate social justice campaigners. Alison juggles motherhood, as well as heading up a major legal practice area. Younger sister Jillian also leads a team of lawyers and sports a double degree in Law and Journalism.