Recently, the news headlines have been flooded with Sofia Vergara, who plays Gloria on the popular television show Modern Family, and her legal battle with her ex-fiancé regarding the ownership of their frozen embryos. A part from providing us another insight into the lives of the rich and famous, this latest legal battle has now raised valid questions about what happens to embryos once a couple separates and whether either party can claim ownership of the embryos themselves. This article considers the legal treatment of embryos in Western Australia and provides useful information for couples who are undergoing or considering undergoing in vitro fertilisation.

The Law

The process of creating and freezing embryos is once which is stringently regulated by Human Reproductive Technology Act1991(WA). Since the development of modern medicine and the relative availability of assisted reproductive services, the legislation has changed and moved with the times to regulate the creation and storage of gametes and embryos. In essence, the Act provides that gametes and embryos must be stored on the terms of the consent of either the gamete provider, or in the case of an embryo, by each of the parties on whose behalf the embryo was developed. This means that each party will need to provide their written consent with respect of the following issues:

• How long the gametes or embryos are to be stored;
• For what purpose are the gametes or embryos to be utilised; and,
• With respect of a couple, what happens to the gametes or embryos upon separation.

The Reality

Individuals as well as couples who are considering freezing their gametes or embryos for later use will find that upon their initial appointment with their clinic of choice they will be required to undergo a counselling session so as to be advised of all of the possible consequences in proceeding with the treatment. If the parties then proceed with the treatment they will be required to execute their consent with respect of the length of storage as well as the specified use of their gametes and embryos.

The maximum storage period is currently 10 years, however that period can be extended by providing further consent by all parties to the extension of storage. The parties will also have to decide what their gametes and embryos could be used for, such as implantation in the female provider only, surrogate implantation, donation, or sole ownership by one of the parties. Finally, the parties will both need to provide their consent as to what will happen to the gametes or embryos if the parties separate.

It is imperative that parties discuss what is to happen to the gametes or the embryos if they were to separate as if there is no agreement the Act provides that the only available dispute resolution method is through the Court.

Although in vitro fertilisation is becoming more and more common, there haven’t been many cases which deal with the issue of ownership of embryos upon separation of the parties. The most appropriate authority comes from the case of G and G [2007] FCWA 80. In this matter the husband and wife had consented to their 6 embryos being stored for 3 years. The husband made an application to the court to grant him sole custody of the embryos or to alternatively donate the embryos to couples who were infertile. The wife sought to have the embryos discarded as they were not going to be used by the couple. Here the Court found that the parties only consented to storing the embryos for a period of 3 years. Further the parties had noted at their initial appointment that in the event of the death of either one of the parties, the embryos were to be discarded. The same was to happen if the parties were to separate. The Court placed a great weight on this agreement which was filled out as a form and signed by both the parties at their initial appointment. The Court also noted that the purpose of storing the embryos was so that the wife could fall pregnant at a later stage, however as the parties’ relationship had broken down, this purpose could not be fulfilled and as such the embryos were to be discarded.

Where to from here?

It will be interesting to see how the American Courts treat Sofia Vergara’s legal battle with her ex-fiancé. Given that embryos are equal halves of the gamete providers, it is hard to see how a Court will be able to give ownership of the embryos to either one of the parties. Given the pro-choice and pro-life debate which is currently occurring in America, it is not anticipated that the Courts will hand down a controversial decision and as such it is expected that the Court will order the embryos be discarded.

In Australia, so far the safe option seems to be to follow the initial wishes of the parties at the time of commencing treatment. If the parties then separate then it may be that the initial purpose for undertaking the treatment will be impossible to implement and as such the Court will not allow either party to have ownership of the gametes or embryos. Understandably, the Courts will not venture into unchartered territory whereby if they gave one party ownership of the embryos or gametes then the new quest arises of what role does that party play in any potential children’s lives. Of course there are circumstances where the Court may order that one party have the other party’s gametes, however, so far this has only happened upon the death of a party and while the parties were in a relationship.

Given the fast changing pace of modern medicine, it is always advisable for you to seek legal advice when facing a life changing decision such as in vitro fertilisation treatment.

About the author

Tihana Nevjestic is an Associate at Lynn & Brown Lawyers. Tihana was admitted in the New South Wales Supreme Court in 2010 and has been practicing in family law since moving to Perth.