What happens to frozen embryos in the event of the breakdown of a relationship?

Family Law: 23 March 2019

Our interest was piqued recently in relation to the issue of what happens to frozen embryos in the event of the breakdown of a relationship. This was in light of the recent Sofia Vegara and Nick Loeb matter in the United States in which Loeb is suing Vegara for control of two frozen embryos. In that matter, Vegara alleges that Loeb signed a contract allowing the embryos to be destroyed in the event of the breakdown of their relationship; however, Loeb claims that destroying the embryos would be contrary to his pro-life values and that he was pressured into signing the contract. Loeb has now been granted permission to file a revised complaint. The revised complaint alleges Vergara violated an oral agreement to bring the frozen embryos created from his sperm and Vergara's eggs to term via a surrogate.

There are many questions that are raised in relation to this type of matter particularly in regard to who has the rights to the frozen embryos in the event of the breakdown of a relationship or does neither party have rights to the frozen embryos once the breakdown of the relationship occurs and consent has been withdrawn?

In Victoria the Assisted Reproductive Treatment Act 2008 (Vic) ('the Act') regulates the use of assisted reproductive treatment and artificial insemination procedures. Section 20 of the Act provides that any person who gives consent may withdraw that consent at any time before the procedure or action consented to is carried out. Essentially each party can withdraw their consent to the continued storage or use of the embryo up until the point that it is transferred to the woman;s body. The issue that is raised then is what happens when consent is withdrawn?

Whilst not a Victorian case, Western Australia has looked at this issue in the case of G and G [2007] FCWA 80. The Western Australian Family Court found that the dominant approach taken by the Court is to give effect to the original consent, where it is available and effective and which was signed at the beginning of the treatment. Briefly, in this matter six frozen embryos were stored during the course of the relationship and when it came to an end the woman sought to have the frozen embryos destroyed but the man sought that they be transferred to his custody so that they could be used by another infertile couple. The contract signed at the beginning of the process indicated that the embryos would be destroyed in the event that the relationship broke down. The Western Australian Family Court here found that the embryos should be discarded in accordance with the terms of this agreement.

Victoria at this stage has only dealt with an issue whereby one party was unable to gain consent from the other party to an extension of the storage period after the breakdown of a relationship in HA v Patient Review Panel (Human Rights) [2013] VCAT 1628. In this matter th'e Victorian Civil and Administrative Tribunal ('VCAT') highlighted the issue of the lack of consent of the former partner but VCAT found that although the former partner had not signed a consent for the extension he had initially signed the consent forms to freeze the embryos and VCAT found that there were reasonable grounds for the extension of the period and that the freezing of the embryos for a further 5 year period would not have any negative impact on either party and it would allow more time to seek his consent to the use of the embryo's.

It is clear from the Western Australian case that the Court leant towards giving effect to the original consent. Interestingly, a recent Huffington Post article entitled, 'Divorce and the Future of Your Frozen Embryos'outlined that to prevent situations such as the Vegara v Loeb matter that parties should enter into a contract with each party seeking independent legal advice to ensure that the parties have been presented with all of the details needed to reach the decisions agreed upon in the contract and to ensure that it would stand up in Court if the relationship breaks down.

However, Victoria's legislation, whilst providing parties with the right to withdraw consent before a procedure occurs, does not adequately deal with the issue of when consent is withdrawn and the original consent does not deal with the issue of what happens to the frozen embryos upon the breakdown of a relationship.

This demonstrates there is going to be ongoing challenges for the Courts in attempting to establish and apply appropriate legal principles to the issues that will be raised by assisted reproductive technology particularly in light of developments in the area and the ease of access to the public.