Leena & Leena
[2024] FedCFamC1F 135
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leena & Leena [2024] FedCFamC1F 135
File number(s): PAC 2225 of 2023 Judgment of: RIETHMULLER J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – PROPERTY – Interim hearing – Stored embryos – Where the embryos have succumbed – Where the parties are no longer together – Dispute regarding the disposal of the succumbed embryos – Whether the succumbed embryos are “property” for the purposes of s 79 of the Family Law Act 1975 (Cth) – Whether the Fertility Centre’s contract is valid – Partial property order made Legislation: Family Law Act 1975 (Cth) ss 79, 90SM, 114
Assisted Reproductive Technology Act 2007 (NSW) ss 3, 4, 17, 18–29, 54
Human Reproductive Technology Act 1991 (WA) ss 25, 26
Cases cited: Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; [2011] 2 Qd R 207
Canvil & Merle (No 2) [2019] FamCA 685
Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)
Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45
Edwards; Re Estate of Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478
Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727
Evans v UK [2007] ECHR 265
Field & Story [2018] FamCA 1066
G and G [2007] FCWA 80
Kennon & Spry (2008) 238 CLR 366; [2008] HCA 56
Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745
Piccolo v Piccolo (2017) 58 Fam LR 551; [2017] FCWA 167
Re H, AE (No 2) [2012] SASC 177
Roblin v Public Trustee (ACT) [2015] ACTSC 100; 10CTLR 300
Roche v Douglas (2000) 22 WAR 331; [2000] WASC 146
SH v DH (2018) 142 OR (3d) 61; [2018] OJ 3961
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1
Cahn, Naomi R., “Parenthood, Genes, and Gametes: The Family Law and Trusts and Estates Perspectives Family Law Symposium” (2001) 32(3) University of Memphis Law Review 563
Cohen, Glenn and Eli Y Adashi, “Embryo Disposition Disputes: Controversies and Case Law” (2016) 46(4) Hastings Center Report 13
Cornell, Mollie and Teresa Baron, “The Law and Ethics of a Property Rights Approach to Frozen Embryo Disputes” (2023) Legal Studies 1
Forman, Deborah L., “Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer Cutting Edge Issues in Family Law” (2011) 24(1) Journal of the American Academy of Matrimonial Lawyers 57
Magnusson, Roger S., “The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions” (1992) 18 Melbourne University Law Review 601
Stuhmcke, Anita et al, “Use of Stored Embryos in IVF Following Separation or Death of a Partner” (2013) 20 Journal of Law and Medicine 773
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 9 and 14 November 2023 Place: Parramatta Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Marsdens Law Group Solicitor for the First Respondent: Soden Legal Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
PAC 2225 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEENA
ApplicantAND: MR LEENA
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The succumbed embryos stored by B Medical Centre be destroyed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leena & Leena has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant wife filed an Application in a Proceeding on 8 November 2023 seeking orders preserving frozen embryos which the parties presently have stored at B Medical Centre (the proposed second respondent). In late 2023, the respondent husband completed an “Authorisation for Disposal of Gametes, Embryos or Tissue” form and provided it to B Medical Centre. In accordance with B Medical Centre’s policies (in relation to a party changing their authorisation), the embryos were not going to be retained beyond 5.00 pm on 9 November 2023.
On 9 November 2023, urgent interim orders were made for the preservation of the embryos, pending further order, to allow for an appropriate interim hearing to be conducted. B Medical Centre consented to the orders made 9 November 2023 and later confirmed in writing that they did not wish to be heard on the Application, and would abide by the orders of the Court. The parties later agreed to allow the embryos to succumb, but remained in dispute as to what should be done with the remains.
The husband seeks the destruction of the embryos and the wife wishes to retain them to dispose of them herself.
BACKGROUND
The wife was born in 1987 and the husband was born in 1984. They commenced living together in 2013 and were married in 2016. The parties separated on a final basis in September 2022.
There are two children of the relationship, X, born 2015, and Y, born 2018. They currently live with the wife.
The parties have financial and parenting proceedings pending before the Court.
A representative of the assistive reproductive technology service, B Medical Centre, appeared at the first day of the hearing of this Application, and agreed B Medical Centre would comply with any orders of the Court and chose not to make submissions with respect to the Application.
The Independent Children’s Lawyer appearance was excused.
THE CREATION OF THE EMBRYOS
The embryos in storage are the product of gametes from both the husband and wife and do not include gametes from any other person, such as a donor.
In 2016, the parties provided written consent to B Medical Centre for assisted reproduction treatment. The consent included the following clause:
13. We agree that we (the partners in the relationship) will hold joint responsibility for any stored embryo(s). We understand that embryos cannot be thawed and used in an attempt to produce a pregnancy before the document, “Consent to Thaw Embryos” has been signed and witnessed by both partners.
In mid-2021, both parties signed a “Consent for Continued Embryo Cryostorage” with B Medical Centre which states:
6. We agree that as partners (where applicable) we hold joint responsibility for any cryostored embryos and that embryo(s) cannot be thawed and used in a transfer without the consent of both partners. We understand that if either one of us no longer wishes to use our cryostored embryos for treatment, either one of us can opt out and direct the embryos to be discarded. We understand that if we choose to, we can donate the embryos to another party (in some cases).
The wife has a medical condition, which has led to fertility issues. She suffered a number of miscarriages when attempting to conceive. As a result, the wife underwent fertility treatments at C Medical Centre in 2014, later moving the embryos to B Medical Centre. By the end of the parties’ relationship, the husband had decided that he did not want more children.
The husband sought the disposal of these embryos long after separation, by signing a “Authorisation for Disposal of Gametes, Embryos, or Tissue” form in late 2023 which provided his consent to the embryos being “allowed to succumb and be discarded”.
A few days later, the wife was contacted by B Medical Centre who advised her that the husband was requesting that the embryos be discarded. The wife submits that the embryos are a part of the parties’ wider property settlement.
In late 2023, the wife’s solicitors wrote to B Medical Centre requesting that, in the event of their destruction, the wife be permitted to collect the succumbed embryos. Her solicitors were advised by B Medical Centre that the husband had explicitly instructed them not to allow the wife to collect them. The wife states that she wants to dispose of the embryos with the dignity and respect she believes is necessary. The wife requested that the husband reconsider, and she maintains he is taking this route to cause unnecessary pain during their property proceedings.
The wife conceded that she cannot use the embryos without the husband’s consent and that he is aware of this. The wife initially wished to prevent the disposal of the embryos, and alternatively, if they can no longer be stored, that she be allowed to dispose of them herself.
After the birth of the parties’ second child, the husband informed the wife that he did not want to have any more children. He claims the wife also decided that she no longer wanted more children. Despite using contraception, the wife fell pregnant in 2019, but suffered a miscarriage. In 2020, the husband had a vasectomy. Sometime after the husband’s vasectomy, he says the wife began expressing her wish for a third child, and informed the husband that she would not request he pay child support (the parties were still in a relationship at this stage).
In mid-2021, the form for “Consent for Continued Embryo Cryostorage” was executed, containing signatures from both parties. Although the husband submits that he does not recall signing this form, he does not deny that it is his signature.
In late 2022, the husband requested from B Medical Centre that they never release the embryos without both his and the wife’s signatures. As mentioned at [12], in late 2023 the husband completed the “Authorisation for Disposal of Gametes, Embryos, or Tissue” form.
The husband claims that at other times during the fertility process, when unsuitable embryos were being discarded, the wife did not express a wish to bury or dispose of them with dignity.
At the interim hearing, the parties both consented to allowing the embryos to succumb but remained in dispute as to what should be done with them afterwards. Consent orders were made reflecting their decision to allow the embryos to succumb (on 9 November 2023). The parties both asked the Court to determine on a final basis the issue of the whether the succumbed embryos are to be destroyed or placed into the control of the wife, each relying on their affidavits.
ISSUES FOR THE COURT
The issue between the parties is now limited to what should be done with the embryos after they had succumbed. The wife sought orders permitting her to take possession of them (they are contained in sealed plastic tubes known as a ‘straw’) in order to be able to deal with them by placing them in an urn with the ashes of another relative or a flowerpot, appropriately marked, as a form of memorial. Whilst there was an issue as to whether the wife sought to bury them at her home or with her deceased mother, she stated that this was not the case and gave undertakings not to do so if she obtained possession of them.
The husband sought the destruction of the embryos by B Medical Centre.
Reasons are also required to address the Court’s power to initially injunct B Medical Centre from allowing the embryos to succumb, and for the consent orders permitting them to succumb.
The primary question is whether relief with respect to embryos is pursuant to s 114 of the Family Law Act 1975 (Cth) (“the Act”) or pursuant to s 79 of the Act. If the embryos fall within the broad definition of “property” they can be subject to orders pursuant to s 79 of the Act (or in the case of de facto relationships, s 90SM of the Act). If the embryos are not within the broad definition of “property” under the Act, s 114 of the Act appears to provide a power to make orders as between a husband and wife (although not between a de facto couple).
Property rights are a normative concept that derive from the context in which they are being considered. As the High Court explained in Yanner v Eaton (1999) 201 CLR 351 at [17]:
… “property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of “property” may be elusive. Usually it is treated as a “bundle of rights”.
(Citations omitted)
Thus, in Kennon & Spry (2008) 238 CLR 366 at [64], French CJ noted that “property” in s 79 of the Act should be read as part of the collocation “property of the parties to the marriage”, it should be read widely and conformably with the purposes of the Act.
The relevant State legislative scheme
In NSW, the storage of the embryos is regulated by the Assisted Reproductive Technology Act 2007 (NSW) (“ART Act”). The objects of the ART Act are set out in s 3 which provides:
3 Objects of Act
The objects of this Act are:
(a) to prevent the commercialisation of human reproduction, and
(b).to protect the interests of the following persons:
(i) a person born as a result of ART treatment,
(ii) a person providing a gamete for use in ART treatment or for research in connection with ART treatment,
(iii) a woman undergoing ART treatment.
The ART Act provides for a registration scheme for Assisted Reproductive Technology (“ART”) providers and a number of requirements that must be complied with when providing services. Importantly, Division 3 of Part 2 of the ART Act provides a range of restrictions upon ART providers, requiring them to obtain a myriad of consents from the donors of gametes which ensure that providers of gametes and embryos have considerable control over the tissues. For instance:
(a)Section 17(1) of the ART Act allows for providers to give written notice to an ART provider “setting out the gamete provider’s wishes in relation to the gamete (the gamete provider’s consent)”, which may address matters such as “the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider”: s 17(2) of the ART Act.
(b)Sections 18 to 29 of the ART Act contain many restrictions on ART providers including, but not limited to, the following:
(i)Prohibiting the creation of “an embryo outside the body of a woman except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”: s 18 of the ART Act;
(ii)A prohibition upon providing “ART treatment to a woman using a gamete except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”; s 19 of the ART Act;
(iii)Prohibiting an ART provider from using “a gamete or an embryo for research except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”: s 20 of the ART Act;
(iv)Prohibiting an ART provider from supplying or exporting “a gamete or an embryo to another person (including another ART provider) except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”: s 21 of the ART Act;
(v)Prohibiting an ART provider from storing “a gamete or an embryo except with the consent of the gamete provider and in a manner that is consistent with the gamete provider’s consent”: s 25 of the ART Act.
Whilst the ART Act provides no express right to the providers of gametes to recover possession of the gametes or embryos from an ART provider, consistent with the objects in s 3:
(a)The B Medical Centre’s “Consent for Continued Embryo Cryostorage” form provides:
8. I/We are aware that if I/we request that the embryos be released from storage for transport elsewhere, we will be charged an administration fee and that will be subject to our further written consent.
(b)Section 54 of the ART Act provides a right to “[a]ny person claiming to be entitled to” any item seized by an Inspector using the enforcement powers under the Act to “make an application to the Local Court for an order disallowing the seizure”.
Unlike the Human Reproductive Technology Act 1991 (WA), there is no reference to “property rights” anywhere within the ART Act. The State statute’s failure to clearly identify whether gametes or embryos can be the subject of property rights is not dissimilar to legislation in many states of the United States of America which, as Professor Forman notes, “share the dubious distinction of bringing confusion rather than clarity to the question of embryo disposition in cases of divorce” (see Deborah L. Forman, “Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer Cutting Edge Issues in Family Law” (2011) 24(1) Journal of the American Academy of Matrimonial Lawyers 57, 61).
However, the suite of restrictions imposed upon the conduct of registered ART providers with respect to gametes and embryos in favour of consents by the parties reflects many of the incidents of property rights. This is unsurprising as property rights are the foundation for many important legal remedies.
In the present case, there is a “bundle” or “collection” of rights held by the parties that allow them to control the use of the embryos and take possession of them. Whilst their inability to sell the embryos is a significant limitation, it does not alter the reality that the parties have effective control over the embryos.
The reasons in both Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 (“Yearworth”) and Roche v Douglas (2000) 22 WAR 331 (“Roche”) identify that “property” is a “collection of rights” that one may exercise over something else. Despite the ART Act limiting the wishes of the parties and imposing professional obligations on the ART providers, this does not mean the parties do not have rights over the embryos.
While those storing embryos have their rights limited, the parties still enjoy a ‘bundle” or “collection” of rights. The fact that the succumbed embryos are stored with a third party and that the provision of such storage services are limited to ART providers (which must be registered according to s 4 of the ART Act), does not deny the progenitors of property rights over the embryos. It is necessary that registered providers are involved in the process and this reliance on third parties does not dispel the rights afforded to gamete providers.
The rights afforded to the parties include the parties’ entitlement to give consent to storage, to request directions be made with the stored embryos and dictate the period to which the embryos are stored. They also enjoy negative rights, such as forbidding their embryos being used in certain ways without their direction, such as implanting them, donating the embryos to other persons, or donating them to research. Under the ART Act, s 17 allows gamete providers to give, modify, or revoke their consent in relation to embryos. Section 25 provides that ART providers cannot store the embryos without the gamete provider’s consent. While the ART providers have “obligations” under the ART Act, the gamete providers are the only ones with “rights” in relation to the embryos: the embryos are comprised of their genetic material, were produced and stored for their benefit, and the embryos cannot be used for implanting, donation, research, or otherwise, without their explicit consent. The “bundle of rights” that the parties can exercise indicate that the stored embryos are appropriately the subject of property rights.
The difficulty with property rights with respect to gametes and embryos is that they are deeply personal items, and an embryo (if viable) can grow to become a person. It is for this reason that many are reticent to conclude that property rights exist with respect to embryos. However, as a matter of law, an embryo is not a person with rights of its own. Under the Family Law Act 1975 (Cth), an embryo is not within the definition of a child: see Lee & Hutton (2013) 50 Fam LR 322. Whilst property rights are most commonly associated with commercial trading between individuals, they are also the basis of many other legal protections. It is property rights that are often relied upon when proceedings are brought against ART clinics or those that interfere with tissues, as property rights most commonly provide a basis for suit against those who are not a party to a contract.
However, the depth of emotions concerning gametes and embryos is significant, as exemplified by the comment of Professor Forman that:
Rather than see the embryos as a “back-up” plan, patients’ now see them as “virtual children” and as potential siblings of the children they had through IVF.
(Deborah L. Forman, “Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer Cutting Edge Issues in Family Law” (2011) 24(1) Journal of the American Academy of Matrimonial Lawyers 57, p.18)
Researchers have pointed out that people engaging in ART often do not reflect deeply upon what is to occur in the event of a separation. However, I note that in the present case, the particular clinic had counselling in place to support the parties and there was no claim that either party in this case had not reflected fully on the effect of the consent forms that they had signed.
Tissue and body parts are not consistently treated as being outside the ambit of property rights. Hair is property once cut from the person (hence wigs made with human hair can be bought and sold). However, dead bodies were not generally considered the subject of property rights unless a person has lawfully exercised work or skill when dealing with a body or a body part after which it can be the subject of property rights: Doodeward v Spence (1908) 6 CLR 406 (“Doodeward”). However, the approach in Doodeward has been criticised for not providing a suitably nuanced test for contemporary application: see, for example, the discussion in Roger S. Magnusson, “The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions” (1992) 18 Melbourne University Law Review 601.
Advances in medical science in the last 50 years have resulted in millions of human tissue items being held or stored both for research and treatment, necessitating the resolution of many disputes. Thus, many cases have concluded that sperm samples are subject to property rights for various purposes. For example, in Edwards; Re Estate of Edwards (2011) 81 NSWLR 198, the Court applied the principle in Doodeward, finding that the applicant’s deceased husband’s sperm was “property”. Hulme J said:
80. … There is a sample of sperm being stored by IVF Australia. It is a real object; a physical thing. It has a value or worth in an intangible sense. Indeed, it has, as [counsel for the applicant] put it, potentially enormous human importance to [the applicant] and her family. These are matters that the law should recognise and protect.
81. I take Bryson J in Pecar v National Australia Trustees Ltd and Anor to have adopted a similarly pragmatic approach in recognising that the samples in that case amounted to “property”, at least from the perspective that there was an entitlement to possession of them.
82. Applying Griffiths CJ’s test in Doodeward to the facts of the present case, the removal of the sperm was lawfully carried out pursuant to the orders made by Simpson J. Work and skill was applied to it in that it has been preserved and stored. Accordingly, on this long standing and binding authority the sperm removed from [the applicant’s deceased husband] is capable of being property.
In Roche, Master Sanderson found that tissue samples that had been preserved in paraffin oil were subject to property rights, relying on “reason and common sense” (at [14]).
A strong authority against the proposition that property rights could apply to embryos is that of Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727 (affirmed in the European Court of Human Rights in Evan v UK [2007] ECHR 265 (Grand Chamber, Application No. 6339/05)) (“Evans”). The facts are confronting. The plaintiff, having received a cancer diagnosis, arranged to provide ova from which, with gametes from her partner, embryos were created and stored. The plaintiff contemplated the possibility that her relationship may not endure and thus considered saving ova, however, she was reassured by her partner that, as the trial judge found (Evans at [63]), “They were not going to split up. She did not need to go in for egg freezing. She should not be negative. He wanted to be the father of her children”. The plaintiff then undertook cancer therapy which rendered her unable to have children, other than by using the stored embryos. Unfortunately, her relationship with her partner had broken down in the intervening period and he now objected to her using the embryos created with his gametes. The plaintiff was unable to succeed on a promissory estoppel claim, however, she may have been able to succeed on a proprietary estoppel claim if the embryos were subject to property rights for this purpose: see the discussion in Mollie Cornell and Teresa Baron, “The Law and Ethics of a Property Rights Approach to Frozen Embryo Disputes” (2023) Legal Studies 1. Cornell and Baron set out a persuasive argument for the use of property rights in such cases. The authors argue that subjecting frozen embryos to property rights provides a more stable framework for dispute resolution, and benefits women who are disproportionately harmed in circumstances such as occurred in Evans.
In Yearworth, the Court considered the destruction of pre-mortem sperm samples due to an error with the storage facility. The claimants’ personal injury claims were rejected on the basis of the detachment between the sperm and the source individual, noting that “we must deal in realities” (at [23]). Rather than relying upon Doodeward, Lord Judge CJ recognised the claimants’ control and rights over their stored sperm, that they alone had generated the sperm, and that they had use for the sperm, and found that these elements were sufficient to establish property rights.
Roche and Yearworth were followed in Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207. Roche was also followed in Re H, AE (No 2) [2012] SASC 177 and Roblin v Public Trustee (ACT) (2015) 10 ACTLR 300, with both cases involving sperm samples that were found to be “property” or subject to “property rights”.
In SH v DH (2018) 142 OR (3d) 61, the Superior Court of Ontario considered a case where the husband and wife had purchased eggs and sperm (that had been donated by others) from “MyEggBank” in Georgia for US$11,500. From these gametes, embryos were created, of which one was used by the parties resulting in the birth of their son, and only one viable embryo remained. Under the Ontario family law statutes equal division of property is required after separation, however an embryo cannot be divided. Del Frate J noted that the parties had entered into written agreements with the clinics agreeing that the embryos were to be treated as property, and that the “agent” would respect the “patient’s wishes”. As the wife was the “patient” referred to in the contract, the Court ordered that she retain the embryo, and that the husband receive a payment for one half of the costs associated with creating one embryo.
It is clear that, at least beyond the limits of “family law” the rules of contract and property have been adapted to the artificial reproduction sphere and will continue to apply (with appropriate attenuations based upon public policy). Even if the legislature attempts to provide a framework specifically for embryos, such a framework will inevitably rely upon contractual or property law principles as these are the relevant frameworks available in the legal system.
The Australian Family Law Cases
In G and G [2007] FCWA 80 (“G and G”), the Court determined that “gametes” were property, but that “embryos” consisting of gametes from both parties were not property. Penny J noted that in s 25 of the Human Reproductive Technology Act 1991 (WA) gametes are dealt with as personal property, yet there is no similar provision referring to embryos as “property”. However, s 26 of the WA Act provides that each person for whose benefit the embryo is developed has the right to decide how to dispose of the embryo. Penny J concluded at [47]:
…if an embryo was treated as simply property, it would not be appropriate that the usual principles of law relating to property settlement contained in s 79 of the Family Law Act 1975 would apply to an embryo. There is something more to be attached to the status of an embryo. In such a context it appears that an embryo is not strictly “property” or “person”.
Whilst, Penny J thought that “something more” should “be attached to the status of an embryo” than property rights, the result of this reasoning was that her Honour did not have power to make “just and equitable” orders with respect to the embryos (under the Act), and the case fell to be determined by the parties’ formal agreement with the ART provider, which provided that in the event of separation, the embryos would be discarded. However, as embryos are not children with the meaning of the Act, nor are embryos able to be treated as “persons”, there is no “something more” in the existing legal system, save for contractual rights with service providers, or in the case of married couples the injunctive power under s 114 of the Act, to provide a legal framework for the place of embryos.
The legal rules for property rights are a system of legal regulation that provide for rights by a person against the world with respect to the subject matter of the property right. As property rights are a legal construct, it is the legal system that determines what can be the subject of property rights, and over the centuries this has altered. Property rights are not limited to items that are tradable or have a market value: for example, they are frequently relied upon to determine rights to items of significant emotional value with no resale worth such as wedding albums, a baby’s sonogram, a child’s first tooth, a keepsake from a trip, or a great grandmother’s letters. By allowing a person property rights over an embryo, the law does not convert an embryo into something equivalent to a chattel but provides a suite of rights to those who have created the embryo. As with many property rights the law imposes considerable restrictions on the extent of those rights and how they may be exercised. Many restrictions appear in the ART legislation of the various states.
Penny J’s reluctance to find that there were property rights exercisable by the parties to control the use of the embryos reflects the liminal nature of embryos and the reasoning in the Tennessee case of Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (often cited in the academic literature) where a quasi-property analysis was adopted with the Court saying at [597]:
… preembryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential for human life. It follows that any interest that [the wife] and [the husband] have in the preembryos in this case is not a true property interest. However, they do have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos, within the scope of policy set by law.
However, care must be taken with US authorities as there is a wide variety of approaches. A useful table setting out the variety of approaches in the US is provided in the article by Glenn Cohen and Eli Y. Adashi, “Embryo Disposition Disputes: Controversies and Case Law” (2016) 46(4) Hastings Center Report 13. Further, as Professor Cahn observes, the variety of US cases present:
… a mixture of intent (contract or will), quasi-property, and public policy in both divorce and death situations. This occurs against the background of a constitutional right to privacy that includes procreational decisions, both the right to procreate and the right not to procreate.
(Naomi R. Cahn, “Parenthood, Genes, and Gametes: The Family Law and Trusts and Estates Perspectives Family Law Symposium” (2001) 32(3) University of Memphis Law Review 563)
In Piccolo v Piccolo (2017) 58 Fam LR 551 (“Piccolo”), neither party argued that embryos were property, with both agreeing that embryos are not properly characterised as “property”, yet “ownership” of the embryos was relevant in the reasons. O’Brien J found that the Court had jurisdiction to make orders with respect to the embryos pursuant to s 114 of the Act as the case was a “matrimonial cause” as defined in paragraph (e) of the definitions in the Act. In Piccolo, the wife’s genetic material was not present as the parties used a donor egg, the embryos were stored in Canada, and, unlike G and G, they had not signed a form that expressly provided for destruction in the event of separation. O’Brien J, who ordered that the wife relinquish her rights with respect to the embryos to the husband, said, at [148]–[149]:
148.…the wife has advanced no cogent reason as to why the cryopreserved embryos should be permitted to succumb, nor as to why the husband should not be permitted to preserve and eventually use them. The agreement executed by the parties in this case stands in sharp distinction to the agreement between the parties in G and G that in the event of separation the embryos owned by them were to be discarded.
149.The parties in this case expressly contemplated and agreed that in the event of separation one of them would assume sole ownership of the embryos. The wife does not wish to assume such sole ownership, but the husband does.
In Field & Story [2018] FamCA 1066, consent orders were made to transfer rights to embryos, although without discussion as to the specific power relied upon. Most recently, in Canvil & Merle (No 2) [2019] FamCA 685, the following orders were made:
(6)The wife (Ms Merle) is hereby appointed as the agent for the husband (Mr Canvil) in relation to any request for the cessation or termination of the freeze-storage or thaw of the frozen embryos and, by this Order, any person, organisation, corporate entity or authority is hereby authorised to act on the sole direction of Ms Merle in relation to such request.
(7) The husband (Mr Canvil) is hereby restrained and an injunction issue restraining him from providing further written instructions to BB Service to prevent that entity from acting on any written instructions provided by the wife (Ms Merle) by which she authorises the cessation or termination of the freeze‑storage of the frozen embryos or otherwise consents to the thaw of the same.
It was noted that “BB Service”, who were storing the frozen embryos, advised the Court that if an order was made empowering the wife to request that the embryos succumb without the husband’s permission, they would comply with her direction. Hogan J found it was appropriate to make such an order (at [164]), but did not expressly identify the power relied upon, presumably because that was not in issue before her Honour.
Contracts or Consents
If the agreements with the ART provider are considered as no more than mere consents, then it would not appear that there is a valid contract in place. Whilst the avoidance of legal language is attractive in this sphere, in the absence of contractual rights or property rights, it is difficult to see what rights, powers or remedies the providers of genetic material would hold. Clearly the law must provide some rights to those who have caused embryos to be created. Generally, those rights flow from the law concerning contract and property. Whilst most would consider that embryos are not to be treated like typical forms of property, recognition of property rights on the part of those causing embryos to be created provides a suite of important legal remedies, beyond contractual rights against those they have dealt with directly. At common law it is well recognised that some property rights can be restricted on the basis of public policy, which can easily be done to ensure that embryos are dealt with appropriately.
Many of the overseas cases have simply enforced the contracts entered into by the parties. However, this apparently simple approach is also fraught for the same reasons that contracts are not enforceable with respect to children’s issues, nor property cases (save in cases where the provisions relating to binding financial agreements have been complied with): such agreements can easily become inappropriate when events occur that were not contemplated at the time, largely because of the optimistic beliefs that most couples hold to the effect that they are not likely to separate. The issues are particularly difficult in the context of gametes and embryos: see, for example, Anita Stuhmcke et al, “Use of Stored Embryos in IVF Following Separation or Death of a Partner” (2013) 20 Journal of Law and Medicine 773, and the facts in Evans. If the nature of an embryo is considered inappropriate to be the subject of property rights, as an embryo lies somewhere between a chattel and a human being, then leaving an embryo to a fate determined by contracts concerning its creation appears more objectionable than considering it the subject of property rights that are appropriately attenuated to recognise the unique nature of an embryo. Pursuant to the Act, a recognition of property rights would enable the Court to determine what orders are “just and equitable” with respect to an embryo, even if that differed from the contracts or consents of the parties, both for married and de facto couples.
Although s 79 of the Act was drafted for the purpose of dealing with the more traditional subject matter of property rights, it is worded sufficiently broadly to enable appropriate regard to be paid to the special nature of embryos. The requirement that any order be “just and equitable” provides a suitable basis to attenuate property rights as may be appropriate in cases concerning embryos.
DETERMINATION
The embryos in this case were stored in ‘straws’. The plastic straws are clearly “property”. This aspect of cases concerning minute tissue samples led Master Sanderson in Roche, to say at [24]:
To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.
I approach the case on the basis that the plastic straws are of no market value, nor emotional value to any party. The straws only have value as the container for the embryo, and as such, the focus must be on the embryo and not the straw.
The law as set out in Doodeward, which appears to remain the binding authority, at least with respect to the succumbed embryos, results in the embryos being “property” due to the work and skill utilised to extract and store them, placing them into straws. However, recognising the parties “collection of rights” over the embryos, it is appropriate to consider them the subject of property rights at common law. When categorising embryos for the purpose of the provisions of the Act which provides for children and property, the succumbed embryos are clearly not the former, and should not be excluded from the latter. In my view, the parties’ rights with respect to embryos are property rights within the meaning of the term as it is used in s 79 and s 90SM of the Act. If I am wrong in concluding that viable embryos are the subject of property rights, I am nonetheless persuaded that the viable embryos can be the subject of an injunctive order relying upon s 114 of the Act as the parties in this case were married.
Both parties contributed their genetic material, the wife her ova and the husband his sperm. It is invasive and more emotionally exhausting to extract ova than it is to collect sperm. The wife made a larger contribution in this respect. The wife paid the fees to keep the embryos stored, therefore contributing financially, however this cost can be reflected in the final property proceedings which are pending. The embryos are the product of the bodies of each party and give rise to significant emotional issues for the parties, neither of which can continue to conceive naturally. The outcome (destruction or delivering the embryos to the wife) will have an emotional impact upon each of the parties. A relevant, but not decisive consideration, is the agreement of the parties reached at the time they caused the embryos to be created.
Considering the matter as a whole, I am satisfied that partial property orders are appropriate to deal with this issue. I am not persuaded to make orders that the succumbed embryos be delivered up to the wife, nor would I have ordered that they be delivered up to the husband. I am satisfied that it is just and equitable that orders be made for the succumbed embryos to be destroyed, and I make orders accordingly.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 8 March 2024
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