Who owns an embryo?

Is an embryo treated like a child in a parenting dispute? Or is it like property in a divorce? The truth is, it’s not treated like either a child or property, but in a category by itself.

Under Victorian law, when a couple creates embryos with eggs from one partner and sperm from another, they are considered both to ‘own’ or have the right to decide what to do with the embryos. But unlike say, real estate that can be liquidated and the proceeds split between the parties, an embryo is treated differently. If the parties separate, the embryos are placed in ‘lockdown’ by the clinics so that neither party can use them without both parties renewed consent. And generally speaking, one party cannot use the embryos, or decide what to do with them, without the consent of the other party.

So, what happens when a couple separates and need to decide what happens with their unused embryos? There’s a few possible outcomes.

  1. They can both consent to the embryos being destroyed, or ‘succumbing’ meaning they are not going to be used.
    .
  2. One partner can donate the embryos to the other partner, meaning that one might use them to attempt to have a baby, with the other party being listed as a donor rather than a parent. This would involve counselling and legal advice before the party can formally donate the embryos to their former partner.
    .
  3. They might agree to using the embryos together, with the intention of co-parenting any child/ren born from the embryos. This would also require counselling and legal advice, as a co-parenting arrangement is different to a regular parenting arrangement.

Unfortunately if there is a dispute, with one party wanting to use or donate the embryos and the other refusing, it is likely that neither party would be able to use the embryos at all. Under Victorian law, embryos cannot be used unless both parties providing their gametes have provided ongoing consent to their use. Once one party withdraws their consent, the embryos can no longer be used.

There are very few cases that have ended up in court in Australia over the use or ownership of embryos. One case, in Western Australia, referred to as G and G [2007] FCWA 80, the court  found that the approach should be to consider the original intentions of the parties (that the embryos were intended to be used by the parties to achieve a pregnancy together) and the original consent – which was that if they separated, the embryos would be destroyed.

When it comes to embryos created with the assistance of a donor, the Victorian laws are the same. The donor must consent to the use of the embryos created with their gametes, and if they withdraw consent then the gametes can no longer be used. The donor can withdraw their consent at any time up to the moment of embryo transfer. In other States, the donor can only withdraw their consent up to the point of fertilisation. Unlike the donor recipients, the donor does not have any legal parental obligations to any child/ren born from their donation.

If you are considering having a child with the assistance of a donor, be sure to consider the options and read more about donor agreements. You can also read more about donor conception.

Hi! I’m Sarah Jefford. I’m a surrogacy, fertility and family lawyer. I’m also an IVF Mum, an egg donor and a traditional surrogate, and I delivered a baby for her Dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.