The distinction between property matters and parenting matters in Family Law is quite clear and is especially so with the different legislative framework that applies to each. However, with the advances in Assisted Reproduction Technology, should those creations from individuals’ biological material be classified as property or as a person?

Due to times evolving, the line between property and parenting in Family Law has become blurry where our legislation does not specify how the use of biological material such as gametes and embryos should be considered. As such, it is the duty of the Federal Circuit and Family Court of Australia to make such determinations when the issue is raised during the course of a proceeding.

Property rights

The question of whether tissue, body parts and deceased bodies are subject to property rights was first determined in Doodeward v Spence¹ in 1908. It was found that if a person has exercised work or skill lawfully when dealing with the above, then it relates to property.

Notwithstanding, this determination was made prior to the use of Assisted Reproductive Technology. Creating embryos between parties who have a physical right and emotional relationship to it is difficult to categorise given the intrinsic link between the embryos and the parties.

Recently, the Federal Circuit and Family Court of Australia found that embryos formed part of parties’ “property”. As such, property orders could be made for the outcome of embryos so far as they are deemed “just and equitable”.

In Leena & Leena [2024], the initial issue in dispute was related to whether a party can prevent an embryo from being succumbed and disposed of within and as a part of their property settlement. Should this be the outcome, then who is to retain the “asset”? And how can an embryo be attributed a dollar value as an asset or do contributions come into consideration?

The Wife ultimately conceded her primary position which sought to prevent the embryos from succumbing and agreed that she could not use them without the Husband’s consent. What remained in dispute for the Court to consider after that concession was whether the Wife should be allowed to dispose of the embryos rather than the Medical Clinic where they were stored.

Therefore, the Court firstly determined whether they had jurisdiction to exercise their power to make property orders in relation to the embryos and whether they fell within the definition of “property”.

State Jurisdiction for Assisted Reproductive Technology

Each state maintains different legislation in relation to the regulations and rights associated when Assisted Reproduction Technology has been used to create embryos. Therefore, when determining whether embryos are subject to property rights for Family Law purposes, the Court must also consider the relevant state legislation.

In the above matter, the New South Wales governing Assisted Reproductive Technology legislation does not create such property rights for embryos and as such, whether those rights exist in the absence of common law required consideration by the Court.

Identified in Yanner v Eaton (1999), property is not necessarily a tangible object or “thing”, but rather a collection of rights formed by the legal relationship with a thing. This allows individuals to exercise discretion over something. Nevertheless, with matters that hold significant emotional and personal value, should they be merely considered a “thing”?

Parties are provided rights over their embryos by way of their relevant state legislation for Assisted Reproductive Technology and consent forms by Medical Clinics, however these rights have limitations. Despite this, the Court considered the parties maintained a bundle of rights associated with the embryos creating inherit property rights.

With an absence of explicit rights and a legislative framework for parties to use for family law matters where embryos are involved, the Court have noted that given the relevant of contractual and property principles to embryos, it is likely that these principles will prevail and creations from Assisted Reproductive Technology will be considered as property.

The Family Law Act 1975

In Leena and Leena, the Court classified the embryos as property due to them being created as a result of the work and skill used when extracting and storing them and the parties possessing a collection of rights over them. Further, they were subject to section 79 of the Family Law Act.

The Court considered contributions made by the parties, as well as what Orders would be just and equitable taking into account the circumstances of the case.

The matter of Leena and Leena is a complicated case and extremely sensitive in nature. It is important to have a solicitor who has experience with complex issues such as embryos in family law matters so that you can navigate your matter with compassion, understanding and sensitivity.

Should you be experiencing a separation and have concerns regarding your rights in relation to embryos, we urge you to contact one of our specialist family law lawyers at Hope Earle Lawyers and Advisors on (03) 9600 3330 or (07) 5606 0001.

 

¹[1908] HCA 45-6 CLR 406