Sisters In Law: Can I use an embryo I created with my ex?

An Adelaide woman is battling her ex to have their baby even though he “point blank” refuses to talk to her.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn give advice to a women who wants to use a frozen embryo despite breaking up with her partner.

Question:

Five years ago I was with a man who I thought I’d spend the rest of my life with. He didn’t want kids right away and I was worried I was going to get too old to conceive so we decided to get embryos frozen using my eggs and his sperm.

A few years later we broke up and I was devastated. Recently I’ve been thinking about how I’d still love to have my own baby and realistically my only chance is to use the embryos created with my ex.

I asked him for a coffee to discuss it and he told me he was point blank not interested. I understand it’s his sperm but it’s also my eggs – don’t I have a right to use my own eggs? – Anon, SA

The woman said realistically her only chance to have the baby is using the embryos created with her ex. Picture: iStock

Answer:

This is a complex legal question that for many people is overlaid with emotional, ethical and personal considerations.

The legislation varies between Australian states however there are national guidelines about the use of assisted reproductive technology which form the ethical basis and operations for most IVF clinical practices.

In South Australia where you live, there is legislation called the Assisted Reproductive Treatment Act 1988 that governs this.

When you and your former partner agreed to participate in IVF, it is highly likely the clinic would have required you to come to an agreement about what would happen to the embryos in various situations including if your relationship were to breakdown, if one of you were to die and if your family was complete and embryos were left over.

Your starting point should be to contact the clinic and determine what each of you consented to in this regard.

Contact the clinic and determine what both you and your former partner agreed to in various situations. Picture: iStock

The national guidelines also require clinics to have a policy in place to deal with disputes between those who have stored embryos.

The guidelines say that any time before insemination of an embryo the donors can withdraw their consent (even if consent was previously provided).

You have done the right thing in firstly approaching your former partner for his agreement to use the embryos as these sorts of matters are usually better dealt with out of the courts, where possible.

That said, because he hasn’t agreed, your only option is to consider a dispute in the family court.

If you can’t come to an agreement with your ex, the family court is the only other option. Picture: iStock

Generally, the agreement you made at the clinic about the use of the embryos will be upheld in court unless there is a compelling argument to change it.

This was seen in a decision in the Family Court in Western Australia, which had some similarities to your situation where there was a dispute as to the use of the embryos after separation.

The wife wanted the embryos destroyed, consistent with the original agreement and the husband wanted them donated.

The agreement you made at the clinic about the use of the embryo will be upheld in court unless there is a compelling argument to change it. Picture: iStock

The court said that the embryos should be destroyed consistent with the original agreement.

The court noted that the embryos were created for a purpose which was consented to, that is, the couple to fall pregnant, and as they had separated that purpose could no longer be achieved.

If you wish to push the issue further, we recommend you seek expert legal advice from a family lawyer who can give you specific advice about your precise circumstances.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]

Get more from Alison and Jillian on their Facebook page

Originally published as Sisters In Law: Can I use an embryo I created with my ex?