Estate planning + stored embryos

Do you ask your clients about their sperm and eggs? It’s not something you’d typically associate with estate planning, but a recent Australian decision dealing with embryos as property has necessitated an update to my client intake form.

One of the purposes of the client intake form is to obtain a list of the client’s assets to be considered as part of their estate plan. Each of the client’s assets may not be individually addressed in their documents, and sometimes certain assets are flagged for further consideration by the client or for the client to seek additional advice outside of their estate planning (eg. issues regarding a client’s digital estate that fall outside the scope of our estate planning advice).

The recent decision of Leena & Leena saw embryos dealt with in a property order. In that matter, the embryos in storage were the product of gametes from both the husband and wife. After separation, the husband submitted an authorisation to the IVF clinic for the stored embryos to be succumbed and discarded. The wife wanted to collect the embryos to personally dispose of them with the dignity and respect she believed they deserved.

At an interim hearing, the parties both consented to allowing the embryos to succumb but remained in dispute as to what should be done with them afterward. Consent orders were made reflecting their decision to allow the embryos to succumb. The parties both asked the Court to determine on a final basis whether the succumbed embryos were to be destroyed or placed into the control of the wife.

The Court considered whether the embryos fell within the broad definition of “property” and therefore orders could be made under s 79 of the Family Law Act. The Court held that the embryos could be considered property and made partial property orders to deal with the destruction of the embryos.

The case references the “bundle” and “collection” of rights attached to embryo storage and that “[t]he difficulty with property rights with respect to gametes and embryos is that they are deeply personal items, and an embryo (if viable) can grow to become a person.”

Interestingly, his Honour said “[p]roperty rights are not limited to items that are tradable or have a market value: for example, they are frequently relied upon to determine rights to items of significant emotional value with no resale worth such as wedding albums, a baby’s sonogram, a child’s first tooth, a keepsake from a trip, or a great grandmother’s letters.” As an estate planner, this struck a chord as often the items that require the greatest consideration by my clients are those with high sentimental value.

Parties may have entered into agreements or consents with their IVF clinic in case of separation or death. It’s important to alert clients to consider the possibility of court orders regarding ownership of stored gametes and embryos.

My client intake form now specifically asks if the client has stored eggs, sperm, and/or embryos. Given that approximately 1 in every 18 children is conceived through IVF, the likelihood of encountering clients with stored embryos is significant. This is an evolving area of law to watch and certainly an interesting one.

Read the judgment of Leena & Leena [2024] on Austlii here

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