Resolving Embryo Disputes

Resolving Embryo Disputes

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Pagediscusses the disputes that occur regarding embryos when a couple splits up and how to resolve them.


G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking about today, resolving embryo disputes and you may say, well, what on earth are you talking about? This is where a couple create embryos so that they can become parents, and lo and behold, they split up.

What’s going to happen with those embryos? Well, this gets pretty ugly, and what can happen is that one of the parties says, I’m not going to agree with you about, for example, parenting arrangements, because they already have a child or children, or I’m not going to agree with you about money, for example, child support or property settlement, unless you agree with me about the embryo.

In other words, what they’re doing is holding, in effect, the embryo’s hostage, being a bargaining chip in the process of the overall dispute. Now, if we have to go there, obviously we go there. But what I’ve seen is that there are a number of ways of resolving it.

The hardest way is you go to court and you get an injunction from the court to allow you to use the embryos. Now this, and thankfully, I’ve never had to do this, but this is something that is difficult where the other side are opposed to it.

If the genetic material is that of you and a donor, it should be pretty straightforward. The court is not going to want to stop you becoming a parent, assume that you haven’t become a parent yet, and say you’re a woman who’s 38, 39, 40, and you discover that your eggs are really too old to be used.

The doctors have said, the chances are not good to try again and the only chance for you to become a genetic parent are those embryos locked in that liquid nitrogen.

So in that circumstance, most of the time there will be… You should be able to get there, push comes to shove, but you’ll be spending a fair whack of money, and you have to think about, is it really worth it? But you also have to be careful about what you signed up with the fertility clinic.

There’s been three reported of cases so far where there have been orders made or refused in these cases, and I’m aware of several other cases in Australia, but three reported cases.

And the first of those, the case was lost by the husband who wanted to use the embryos to donate to others or use for scientific research, and the wife opposed that.

And aside from the policy question or the discretion about, well, is it appropriate to use them to donate to someone else or for scientific experimentation, which is a good and noble aim because it helps others. It was lost because of the paperwork.

The paperwork from the clinic said, If we split up, they are to be destroyed and of course, the judge said, well, that’s what you signed up to, so that’s what’s going to happen.

So step number one, I always say is, get a copy of all the documents that you have signed with the IVF clinic, and you may think you know what you’re looking at, but believe me, some of this is written seemingly back to front.

And you may think that you have signed it all, and I can tell you, having looked at these ones before, sometimes they’re not signed. You may think that IVF clinics are very, very, very thorough, and painfully so, in getting you to sign umpteen bits of paper.

But amazingly, sometimes they are not always signed, as I’ve seen before. Sometimes, as I’ve seen, they purport to be signed by you, but have not been. But I do another video about fraud in IVF. Let’s assume that the forms say everything’s okay. How do we actually cut a deal with your ex?

Well, sometimes you don’t need to cut a deal. It may be that you are the only patient, turns out that all the paperwork that went with the clinic was by you alone. It may be that the only person who paid for all this treatment was you alone.

It may be that the time limit for dealing with a de facto property settlement, if embryos are property, and that’s an issue that I’ve spent many hours pondering, and we haven’t yet had a determination by a court in Australia that they are, although there is one order by consent from Brisbane that seems to be as though their property, and I’m waiting a judgement.

I’ve been waiting a while for it, but anyway, there we go, I haven’t got it yet. Well, the time limit for property settlement has expired. Now, it may be in those circumstances, as I’ve done before, the IVF clinic can be persuaded to release the embryos in effect to you alone.

Now, some clinics want notice given to the other side, and the other side may not be responsive, and then you might be stuck until you actually have to take action formally against the clinic, hopefully, you don’t have to.

Another way that we’ve looked at, I’ve seen it done in binding financial agreements, so you can do financial agreements under the Family Law Act. I’ve seen agreements deal with embryos, I don’t know whether they’re binding. If embryos aren’t property, then the agreement isn’t binding concerning those embryos.

But a feature of a financial agreement is that both sides must have legal advice. So you’re not only saying to the other side, well, I want the embryos, but I want you to pay for a lawyer so I can have my embryos and instantly you get resistance because why should I have to pay for a lawyer when you want them?

So that’s a bit of a problem doing it that way. The third way is, well, the next way is you get orders by consent, and I’ve seen them refuse because I’ve seen registrars say, well, yeah, but embryos are property, so I’m not going to give you your order. Well, we want an injunction, great.

Which means you must go before a judge, and then you burn tens of thousands of dollars before you get before a judge, even though it’s by consent. You can’t get an order made by a registrar in those circumstances, which is cheaper. So, another way that I’ve seen done is, well, we fill out statutory declarations.

I fill out a form that says, they’re yours, and you fill out a form that says, they’re mine, or you know what I mean, one party has them, not both. I must say I don’t like that, I think that’s really unclear and vague and is not a clear written agreement between both of you.

So what do I do? What I typically do is have a written agreement. Now, it may not be a financial agreement under the Family Law Act. It may be, at least in theory, that someone can come up, one of the parties can come along later and seek an adjustment of that or setting aside of that.

I don’t think a court is going to want to do that, let alone have the inclination to do that. But having this written agreement in place, I think, can be done cheaply, quickly. If the other side are in agreement, they don’t have to have lawyers.

But we’ll say in the agreement, you know you’ve got the right to do it, but you choose not to have a lawyer, and present it to the clinic. So the clinic has something in black and white, crystal clear what has been agreed and in one such case, it was an interesting matter where we had a lesbian couple that split up.

So I’m seeing these cases more commonly with lesbian couples, but certainly seen in a few straight couples, and they already had a child, and my client had… It was her eggs that had been fertilised by a donor, and she wanted to have another child, but there was a problem.

The two women didn’t talk, had not talked for about two years, they were locked in family law litigation. The case wasn’t just about where the child lived, because they were arguing about their child, but also whether the child lived here or should be able to move over there.

So the other mum wanted to move and those relocation cases, they’re flipper coin stuff. They’re so discretionary, you don’t know until you get your judgement or how the trial pans out, whether the judge will be for you or against you.

So typically, they aren’t settled, they are litigated to the end, and so that’s what was happening in this, and of course, what did I say to my client? I said, well, the way of fixing this matter, given that you want to use your embryo, is we got to talk to your ex, talk, she said.

When we haven’t talked for two years, can you imagine that? I said, well, you got to. We can go through lawyers, but lawyers at 10 paces because she had a family lawyer, and I’m a family lawyer, but she had a lawyer already engaged in the allegation.

I’m coming as the bolt on to try and sort out this issue with embryos, and I’ve done that a number of times with other law firms as a bolt on to sort out embryos. So, what did we do? We got them to talk, they had a conversation.

The other mum had a conversation with her lawyer, and we had a deal and the deal was an interesting one. I made sure before the deal was added into that my client got advice from her doctor, that was important.

Why? Because we can use the embryos, but not quite yet. Why? Because if my client had a second child and there’s a relocation case involved, then it might be just that little thing that tilts the scales in favour of my client.

No, little Johnny can’t go interstate because little Maria is here, little Johnny’s much, much, much younger sister. So what was agreed was, that at a certain point, which the lawyers had calculated would be after the trial was over and any appeal was determined, about 18 months down the track, the embryos could be used.

Lo and behold, they signed up, and when that 18 months is up, my client will be able to use the embryos. Thank you.

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