Maurice Blackburn

Anna Walsh, Principal

Can an egg, sperm or embryo be the legal property of its producers in assisted reproductive technology? What happens when the couple who provide the gametes to create the embryo no longer want to implant it or they have different opinions about its fate? Can gametes or an embryo be willed to someone?

Courts in Australia and around the world are tackling issues like these more frequently. So far, courts have been willing to consider that there is a right of control over reproductive tissues but that embryos are not 'property' in the traditional sense of that term.

Jocelyn Edwards

The rights that individuals can have over sperm was recently considered by the NSW Supreme Court in Jocelyn Edwards; Re the estate of the late Mark Edwards. The case involved a woman who sought a declaration from the court that she was entitled to possession of sperm that was extracted from her husband's body shortly after his death because she was the administrator of his estate. Although there was no direct evidence before the court, the clear inference was that the woman would attempt to use the sperm to have a child with the aid of assisted reproductive treatment.

In May 2011, Justice Hulme ruled that the woman was entitled to possession of her husband's sperm. However, the judge emphasised that a consideration of the rights that flow from a recognition of something as 'property' raised complex issues and such considerations were beyond the scope of the judgment. Consequently, the court declared that the right granted to the woman was simply the right to possession of her husband's sperm and that no additional property entitlements had been granted.

G and G

In 2007, the case of G and G in the Family Court in Western Australia focused on the relationship breakdown between the donors of the egg and sperm. Here, the court was required to decide the fate of six embryos created and frozen by a couple due to the woman suffering endometriosis. The couple subsequently separated and the woman wanted the embryos discarded but the man wanted the embryos to be transferred into his custody, with the intent that they be donated to an infertile couple or used for surrogacy. At the time of freezing the embryos, the couple signed a consent form indicating that if they were to separate during the period of freezing the embryos, the embryos were to be discarded.

The woman no longer wanted to have children with the man but the man gave evidence that he felt the embryos represented his last opportunity to have children. The court reviewed the Human Reproductive Technology Act 1991, which provides for the consent for storage of human embryos and its control. It also referred to international decisions involving similar circumstances including the English case of Evans v Amicus Health Care Ltd & Ors; Hadley vs Midland Fertility Ltd & Ors, where the two female applicants wanted to use the frozen embryos created with their respective partners after the breakdown of the relationships. The British High Court dismissed the applications on a variety of grounds including that the treatment was consented to together and that the men had an unconditional statutory right to withdraw or vary their consent. The Western Australian Family Court held that as the marriage had disintegrated and the embryos ought to be discarded, as per the terms of the consent for storage originally entered into by the couple.

United States

In the case of Hecht v Superior Court in the Californian Court of Appeal in the United States, the executor of a Will was entitled to the frozen sperm of the deceased. The court ruled the sperm formed part of the man's estate because at the time of his death, and that the man had an interest in the nature of ownership over that sperm. In a separate matter, the United States District Court ruled frozen embryos were not property, but it upheld the claim for mental distress for loss of the embryo when it was destroyed.

Challenges for courts

These cases demonstrate the ongoing challenges that courts face in attempting to establish and apply appropriate legal principles to the issues raised by assisted reproductive technology. The number of cases that courts will be required to decide upon which raise these issues are likely to grow as the use of assisted reproductive technology increases and new methods of artificial reproduction are developed.