Western Sydney Business Connection - IVF and Frozen Embryos

IVF and Frozen Embryos - What Happens When Couples Separate

30-Nov-2016 11:28 | Anonymous

It is a natural way of life, when in a relationship to think long term and make plans together. Whether it’s buying a house, new car or having a baby. Those are the things that many look forward to and dream of. We all know what happens to the house and the fancy new car when couples separate. We also know what happens to children. What we are still trying to understand is what happens when couples who plan to have children via IVF separate and still have frozen embryos stored.

This topic caught the attention of many when Sofia Vegara, an actress well known for her role in the American television series ‘Modern Families’ found herself in dispute with her former partner over their frozen embryos. Whilst in a relationship with Nick Loeb, the couple underwent IVF. As part of the procedure, embryos were frozen and stored. Following separation, Vegara wanted the embroys destroyed whilst Loeb did not. Vegara relied on the contract which was signed by the parties allowing the destruction of the eggs. Will they be destroyed or not? Can a party claim ownership? These questions remain unanswered as the dispute between the pair continues and is yet to be decided by a Court.

The Family Court of Western Australia was recently faced with determining similar issues in the case of G and G (1). The matter came before Penny J and was heard in November 2006 with judgement being delivered on 22 June 2007.

The parties in the case commenced living together in 1998 until separation in March 2005. Mr G was 38 years and Mrs G was 35 years. The parties underwent an IVF procedure due to Mrs G’s long history of endometriosis and ovarian cysts (2). As Mrs G was not ready to have children, after fertilization of the eggs the embryos were frozen for future use. The parties consented to this and signed all necessary documents (3).

In March 2004 the parties signed a form/agreement for storage of the embryo’s and made a nomination for the embryo to be discarded in the event of separation (4). Six embryos were frozen and stored. The agreement time for storage by the parties was three years (5).

In March 2005 the parties separated. Mr G commenced property proceedings and sought property settlement orders which included that the embryos be transferred to him (6). Mrs G sought orders for property settlement in response to that of Mr G. She also sought an order for the embryos to be discarded in accordance with the agreement entered into between the parties in March 2004.

The Court referred to the Human Reproductive Technology Act 1991 which required a court order to be made in the event parties are unable to resolve a dispute about use or continued storage of an embryo (7). It was found that the Family Court had jurisdiction to determine the matter and make an order given the circumstances arising out of the party’s marital relationship (8).

Having considered the relevant sections of the Human Reproductive Technology Act 1991 in particular the sections which require consent of parties for carrying out of IVF procedures, together with the agreement signed by the parties for the embryo’s to be discarded on separation, the Court ordered that the embryos be discarded.

At paragraph 61 Penny J found “the parties have now separated and can no longer achieve the purpose for which they consented to create and use the embroys” (9).