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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- [2024] FedCFamC1F 135
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CaseChat Overview and Summary
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
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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