By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
In the realm of family law, particularly in cases involving assisted reproduction technology (ART), the issue of embryo disputes can be legally and emotionally complex. When couples who have undergone fertility treatments face separation or divorce, determining the ownership and future use of embryos becomes a critical concern.
Legal Framework
In New South Wales, the Assisted Reproductive Technology Act 2007 (ART) is the main piece of legislation that governs storage and use of embryos. This legislation requires parties to provide written consent about how long embryos should be stored and what should happen to the embryos if the couple separates.
The Family Law Act 1975 (Cth) governs disputes about embryo ownership when they arise because Australian law categorises embryos as property rather than individuals. This legal classification significantly shapes how courts adjudicate disputes and allocate rights between parties.
Under Section 79 of the Family Law Act 1975 (Cth), the court has the authority to alter the interests of parties in the property of the marriage, including embryos. This alteration is based on considerations such as financial contributions, non-financial contributions (such as caregiving or homemaking), future needs of the parties, and the circumstances surrounding the creation of the embryos.
Considerations for Individuals
For individuals facing separation or divorce with embryos in storage, several considerations should be carefully evaluated:
- Intentions at Creation: It is essential to consider the intentions of both parties at the time the embryos were created. Any agreements or discussions about the use of embryos should be documented, as they can significantly influence legal outcomes. The starting place is to look at the documents you may have signed prior to your experience with IVF; these are often retained by the IVF clinic you used.
- Practical and Emotional Impact: The decision regarding the use or disposal of embryos can have profound practical and emotional implications for both parties. Factors such as future parental responsibilities, personal beliefs, and the impact on future relationships should be carefully considered.
- Legal Guidance: Seeking early legal advice is crucial to understanding 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 disputes over embryos. Our team has extensive experience in 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.
