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Embryo ownership and destruction after a relationship ends

By August 6, 2019February 23rd, 2024No Comments

A case that will be heard in the courts later this year will raise the thorny moral question of whether embryos should be allowed to be destroyed, in circumstances where the party whose biological material was used to create them wishes to keep them on ice, whereas the other, genetically-unrelated party wishes to have them destroyed because the relationship they were created within has ended.

In the matter of Selkirk & Selkirk (court-ordered pseudonyms), the woman who is not biologically related to the embryos had last year asked the family court to order that the 12 embryos she created with her ex-partner be destroyed as per an agreement they had entered at the time of IVF treatment. The Sydney women have been going through litigation to determine a number of property and parenting issues. A final hearing in their matter has been expedited and should be heard later this year, once the women have undergone mediation to try to resolve all their disputed issues and after a single expert child and family psychiatrist has prepared a Family Report.

Many couples make agreements at the time of signing up for IVF, whereby embryos are to be destroyed in the event of a divorce or relationship breakdown. However, IVF clinics say that people’s feelings change over time and it’s not uncommon for couples to end up disagreeing over who holds the rights to stored embryos, though such cases rarely proceed to court.

The woman in this case whose DNA was used to create the embryos said:

“I think if people believed they wouldn’t have ultimate control over their genetic material then they might be more hesitant to go through the process.”  She added she felt it “horrifying that someone would try to prevent someone else from having children that are not in any way related to them”.

The woman wanted the court to order that the embryos containing her biological DNA be transferred to her, arguing the embryos had been put in her ex-wife’s name “by mistake”, while her ex-wife opposed this on the basis that they had entered an agreement with their fertility clinic ten years ago which stated that the embryos would be “discarded” in the event of a relationship breakdown.

The judge at the interim hearing noted that of the couple’s various agreements with the fertility clinic, an agreement executed in 2013 related specifically to one woman’s ova and therefore suggested that storage and use of the resultant embryos would in fact be permitted by the clinic until 2023.

The judge said that the ultimate decision regarding the embryos would come down to “a decision on the force and effect of the parties’ agreement” regarding the stored embryos, while pointing out that it appeared that the agreement did not provide for what should happen if there was a relationship breakdown but there was later “a reconciliation such that the parties wish to have a stored embryo embedded”.

Certain elements of the interim orders were unsuccessfully appealed earlier this year, however the issue of the embryo destruction was not raised at appeal simply because the primary judge had made no orders relating to the issue. Instead, the primary judge had pointed out the issue could only be dealt with at the final hearing because if the embryos were ordered to be destroyed at the interim stage, then “the interim determination would be effectively a final decision”.

This case is noteworthy to couples (of any sexual preference) who undergo IVF and sign agreements relating to stored embryos. It highlights the need for couples to be very careful to obtain rigorous legal advice in relation to entering such contracts and to ensure their written agreement covers all bases and potential future situations, for the avoidance of doubt—and litigation.

You can read the case here.

Source: Daily Mail

Do you need family law advice? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

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


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