Family Court: embryos are property for the purposes of property settlement
There has been a recent decision by the Federal Circuit and Family Court of Australia dealing with embryos as property. I just want to start with the implications of that decision. The first is that anyone who is separating who has embryos, sperm or eggs in storage may be able to get relief from the court as to what happens with them. This decision makes it plain that not only can you get an injunction, but you can also deal with embryos as least, as property.
The second thing that this decision makes plain is that, in New South Wales at least, the case has to be taken as to who is the gamete provider – that there might be a distinction (and it’s unclear at this stage) whether someone who has relied on a donor can have the same rights or whether it must be the donor that has to do so – so there has to be some qualification there.
And the third thing that stands out to me is that every family lawyer whoever does property settlement has to ask their clients as part of the intake – do you have any eggs, embryos or sperm in storage – because if you do, then you might have orders made in your favour or against you concerning those. So, if family lawyers don’t ask those questions, don’t have it in their intake form then they have the potential risk that later on a disgruntled client says, well, actually you failed your duty of care to me, you’re negligent and as a result of which I’m suing you for damages.
When one in 17 children born are born through assisted reproductive treatment of some kind, that is more than one child in every classroom. IVF and assisted reproductive treatment are common procedures used in Australian society in order for people to become parents. Therefore, it should be assumed by family lawyers that there may be eggs, sperm or embryos kept in storage and therefore asking about their existence should be part of the standard intake procedure for new clients.
Resolving embryo disputes is an issue that I’ve touched upon for quite a few years now. Last year I obtained a judgment from that court where the judge found, that the embryo was property but that’s an unreported judgment. This is not an unreported judgment and I’m delighted that this judgment has now been delivered.
In late 2023 the husband provided a form to his local IVF clinic in New South Wales authorisation for disposal of gametes, embryos or tissues. And in accordance with that clinic’s policies, the embryos were not going to be retained beyond 5 p.m. on the 9th of November 2023. The day before, the wife applies for urgent orders seeking to preserve those embryos. That comes for hearing on the 9th of November 2023 and there were urgent interim orders made for the preservation of the embryos pending further order to allow for an appropriate interim hearing to be conducted. The clinic consented to the orders made that day and later confirmed in writing that they didn’t wish to be heard on the application and would abide with the orders of the court.
The parties later agreed to allow the embryos to succumb, but remained in dispute as to what should be done with the remains. The husband sought the destruction of the embryos, the wife wished to retain them to dispose of them herself. The embryos were created from his sperm and her eggs.
What the court was dealing with therefore was who was to dispose of them and whether the embryos were property.
What the court then said was that there are a suite of restrictions imposed on the conduct of registered ART providers, that’s to use the jargon in New South Wales – these are IVF clinics:
“With respect to gametes and embryos in favour of consents by the parties reflects many of the incidents of property rights.” This is unsurprising” said the judge “as property rights are the foundation for many important legal remedies. In the present case, there is a bundle or collection of rights held by the parties that allow them to control the use of the embryos and take possession of them. Whilst the inability to sell the embryos is a significant limitation, it does not alter the reality that the parties have effective control over the embryos. Whilst those storing embryos have their rights limited, the parties still enjoy a bundle or collection of rights, the fact that the succumbed embryos are stored with a third party and that the provision of such storage services are limited to ART providers which are registered in accordance with the New South Wales Assisted Reproductive Technology Act, does not deny the progenitors of property rights over the embryos.
It is necessary that registered providers are involved in the process and this reliance on third parties does not dispel the rights afforded to gamete providers. The rights afforded to the parties include their entitlement to give consent to storage, to request directions be made with the stored embryos and dictate the period to which the embryos are stored. They also enjoy negative rights, such as forbidding their embryos being used in certain ways without their direction such as implanting them, donating the embryos to other persons, or donating them to research. Under the Assisted Reproductive Technology Act of New South Wales, gamete providers are allowed to give, modify or revoke their consent in relation to embryos. Another section provided that ART providers cannot store the embryos without the gamete provider’s consent. While the ART providers have obligations under the ART Act, the gamete providers are the only ones with rights in relation to the embryos. The embryos are comprised of their genetic material, were produced and stored for their benefit and the embryos cannot be used for implanting, donation, research or otherwise without their explicit consent. The bundle of rights that the parties can exercise indicate that the stored embryos are appropriately the subject of property rights.
The difficulty with property rights with respect to gametes and embryos, is that they are deeply personal items and an embryo, if viable, can grow to become a person. It is for this reason that many are reticent to conclude that property rights exist with respect to embryos. However, as a matter of law, an embryo is not a person with rights of its own. Under the Family Law Act, an embryo is not within the definition of a child…. Whilst property rights are most commonly associated with commercial trading between individuals, they are also the basis of many other legal protections. It is property rights that are often relied upon when proceedings are brought against ART clinics or those that interfere with tissues as property rights most commonly provide a basis for suit against those who are not a party to a contract.”
The judge went on to say:
“The legal rules for property rights are a system of legal regulation that provide for rights by a person against the world with respect to the subject matter of the property right. As property rights are a legal construct, it is the legal system that determines what can be the subject of property rights and over the centuries, this is altered. Property rights are not limited to items that are tradable or have a market value. For example, they are frequently relied upon to determine rights to items of significant emotional value with no resale worth such as wedding albums, a baby’s sonogram, a child’s first tooth, a keepsake from a trip or a great grandmother’s letters. By allowing a person property rights over an embryo, the law does not convert an embryo into something equivalent to a chattel but provides a suite of rights to those who have created the embryo. As with many property rights, the law imposes considerable restrictions on the extent of those rights and how they may be exercised. Many restrictions appear in the ART legislation of the various States.”
The court said:
“If the agreements with the ART provider are considered as no more than mere consents, then it would not appear that there is a valid contract in place. Whilst the avoidance of legal language is attractive in this sphere, in the absence of contractual rights or property rights, it is difficult to see what rights, powers or remedies the providers of genetic material would hold. Clearly the law must provide some rights to those who have caused embryos to be created. Generally, those rights flow from the law concerning contract of property. Whilst most would consider that embryos are not to be treated like typical forms of property, recognition of property rights on the part of those causing embryos to be created, provides a suite of important legal remedies beyond contractual rights against those they have dealt with directly. At common law, it is well recognised that some property rights can be restricted on the basis of public policy which can easily be done to ensure that embryos are dealt with appropriately.”
Many of the overseas cases have simply enforced the contracts entered into by the parties and the court then said, well, there’s some difficulty with that as to different approaches that can be taken. The court concluded the embryos in the case were stored in straws. The plastic straws are clearly property. This aspect of cases concerning minute tissue samples led a judge in a Western Australian case to say:
“To deny that the tissue samples are property in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored would be, in my view, to create a legal fiction. There is no rational or legal justification for such a result.”
The judge in this case said:
“I approach the case on the basis that the plastic straws are of no market value, nor emotional value to any party. The straws only have value as the container for the embryo and as such the focus must be on the embryo and not the straw. Longstanding law in Australia, at least with respect to the succumbed authority results in the embryos being property due to the work and skill utilised to extract and store them, placing them into straws, however, recognising the parties’ collection of rights over the embryos, it is important to consider them the subject of property rights at common law. When categorising embryos for the purposes of the provisions of the Family Law Act which provides for children and property, the succumbed embryos are clearly not the former and should not be excluded from the latter.”
In the view of the judge, the parties’ rights with respect to embryos are property rights within the meaning of the term as is used in section 79 and 90SM of the Act which deal with property settlement. And the judge said that if he was wrong in concluding that viable embryos are the subject of property rights, he was nonetheless persuaded that the viable embryos can be the subject of an injunctive order relying upon section 114 of the Act as the parties in this case were married:
“Both parties contributed their genetic material – the wife her eggs and the husband his sperm. It is invasive and more emotionally exhausting to extract eggs than it is to collect sperm. The wife made a larger contribution in this respect. The wife paid the fees to keep the embryos stored, thereby contributing financially, however, these costs can be reflected in the final property proceedings which are pending. The embryos are the product of the bodies of each party and give rise to significant emotional issues for the parties, neither of which can continue to conceive naturally.
The outcome – destruction or delivering the embryos to the wife will have an emotional impact upon each of the parties – are relevant but not decisive consideration is the agreement of the parties reached at the time they caused the embryos to be created.”
Considering the matter as a whole, the judge was satisfied that partial property orders were appropriate to deal with the issue. The judge was not persuaded to make issues that the succumbed embryos be delivered up to the wife, nor would he have ordered that they be delivered up to the husband. He was satisfied that it was just and equitable that orders be made for the succumbed embryos to be destroyed and orders were made accordingly.
The judgment in my view was a sensible way of looking at embryos – that embryos are property, and was a sensible outcome.
Next steps
The good news is that the case now enables Registrars of the Federal Circuit and Family Court of Australia to make consent orders about embryos. It also makes it easier for the Court to make orders about embryos, and for parties to include what to do about embryos in financial agreements.
The case is a positive step forward enabling resolution of disputes about embryos.
It is likely, as I said, that sooner or later a lawyer will overlook asking a client about whether there are any sperm, eggs or embryos in storage- and get sued by a disgruntled client.
