Leena & Leena

Case [2024] FedCFamC1F 135

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…

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AGLC
Leena & Leena [2024] FedCFamC1F 135
Case
[2024] FedCFamC1F 135
Decision Date

CaseChat Overview and Summary

The matter of Ms Leena versus Mr Leena involved a dispute regarding the disposition of embryos stored at B Medical Centre. The wife, Ms Leena, sought to retain the embryos to dispose of them herself, while the husband, Mr Leena, sought their destruction. The embryos were the result of gametes from both parties and had been stored following their consent in 2016. The husband later authorised the destruction of the embryos in 2023, but the wife opposed this and sought to collect and dispose of the embryos herself. The court was required to determine whether the embryos were "property" under s 79 of the Family Law Act 1975 (Cth) and whether the contract between the parties and the Fertility Centre was valid.

The court considered the contract between the parties and the Fertility Centre, which outlined joint responsibility for the embryos and the requirement for both parties' consent before they could be used or discarded. The court noted the husband's later authorisation for the destruction of the embryos, but also considered the wife's argument that the embryos were part of the wider property settlement and that she should be permitted to dispose of them with dignity and respect. The court also considered the husband's argument that the destruction of the embryos was necessary to avoid further pain during the property proceedings. Ultimately, the court found that the embryos were property for the purposes of s 79 of the Family Law Act 1975 (Cth) and that the contract between the parties and the Fertility Centre was valid. However, the court also found that the husband's authorisation for the destruction of the embryos was valid, and that the wife's opposition to this was not justified.

The court made a partial property order, directing that the succumbed embryos stored by B Medical Centre be destroyed. The form of the order is subject to the entry in the Court’s records. 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).

Orders

Orders of the court

PAC 2225 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LEENA

Applicant

AND:

MR LEENA

Respondent

INDEPENDENT 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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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