As more couples delay starting a family, addressing the future of any stored biological materials – whether a relationship ends or a partner dies unexpectedly – has become an essential yet often overlooked part of family and estate planning, writes Attwood Marshall Lawyers Wills and Estates Special Counsel Hayley Condon and Family Law Associate Laura Dolan.
Egg freezing, sperm banking and embryo storage are giving people more control than ever when it comes to starting a family.
Whether individuals are choosing to focus on their careers, need to undergo medical treatment that could impact fertility, or are facing age-related fertility decline, freezing reproductive materials can provide valuable flexibility and peace of mind.
Using egg or sperm donation and IVF to create embryos and freezing them for future use is also becoming an increasingly popular option for single individuals or same sex couples.
But what happens to these materials if there is an unexpected breakup, or one partner passes away suddenly? Discussing what you both want to do with these materials early in the process and putting your wishes in writing can help ensure everything is clear.
Even if you’re young and just starting out on this journey, thinking through these questions can be essential. It shows you’re thinking ahead about what you both value and want for the future.
Here, we discuss the often-overlooked aspects of family and estate planning related to stored biological materials, and the legal steps couples should take to ensure their wishes are respected in the event of death.
Step 1: Understand the terms and conditions of your IVF clinic
IVF clinics have terms and conditions regarding the storing and releasing of biological materials. It’s crucial to review these documents thoroughly.
Questions to consider:
- How long will the material be stored?
- Under what conditions can it be released?
- Can one partner access the material after the other’s death?
- What happens to the material in the event of separation?
Clinics will also have their own policies around whether a Will or a Power of Attorney is enough to authorise the release of the materials, and it’s vital to ensure your documents align with their requirements.
It is vital to ensure your legal documents align with your clinic’s requirements, and to seek legal advice on the terms of any contract before you sign.
Step 2: Document your wishes
Once you understand your clinic’s terms, the next step is to make sure your own wishes are clearly recorded, both in your Will and in any consent forms held by the clinic.
Couples should explicitly state in their Wills their wishes for using their biological materials. This includes permission for the surviving partner or another designated individual to use the sperm, eggs, or embryos posthumously.
You could include a statement explaining that you and your partner have discussed having children together and agree on what will happen with any frozen eggs, sperm or embryos if either of you passes away.
The key is to be specific. If you die, do you want these biological materials to be used, donated or destroyed? If you want them to be used, you consent to your partner using the materials when you are no longer around.
A lawyer can make sure the wording in your Will is clear and legally sound to avoid any confusion or disputes later on.
Wills can, however, take time to locate after death. To avoid delays, it’s best to also store consent forms with your IVF clinic to ensure your wishes are followed quickly.
In the event of separation
If your relationship breaks down, any Wills that set out your wishes for your biological material will need to be updated to reflect your new family situation and whether the agreement has changed.
Often, when starting an IVF process, patients will need to clarify how their embryos should be treated in the event they split – for example, if these materials should be disposed of or kept in storage until the parties reach a legal agreement on who is responsible for them.
This matters more than many people realise. The Family Law Act 1975 (Cth) contains no specific provisions for how embryos are treated after separation, which means the terms of your original storage contract with your fertility clinic can become the deciding factor in any dispute.
Australian case law on the subject remains limited, but the decisions consistently show that courts look to what the parties agreed at the outset.
If you have not started IVF but have genetic or biological materials in storage when you split, make sure you let your lawyer know about them during any property negotiations. An experienced lawyer will then include any frozen sperm, eggs or embryos in your property checklist and make sure you fully understand the possible scenarios that could play out regarding the next steps.
In the event of death
If one of you dies, the surviving spouse should have clear instructions on what can be done with the biological material. It is crucial that both parties have agreed on the circumstances under which the material can be used.
Proving consent can be very difficult. But success stories occasionally make the headlines.
For example, the widow of Olympic snowboarder Alex “Chumpy” Pullin from the Gold Coast gave birth to a girl 15 months after Mr Pullin died in a diving accident. Ellidy Pullin acted quickly, calling in the family’s fertility surgeon to extract her deceased partner’s sperm just hours after he died. The retrieval and subsequent IVF process involved several bureaucratic steps to ensure the proper consents were in place.
If consent is challenged, the issue can sometimes end up in court.
In 2018, a 42-year-old Perth woman won a court application to retrieve her dead husband’s frozen sperm and transport it from Western Australia to the ACT to have his baby. The couple had wanted children, and the deceased had frozen his sperm a few years before he died in 2016.
When an application for the use of frozen embryos, eggs or sperm – known legally as posthumous collection and use of gametes – lands in court, the judge is likely to consider:
- Whether the deceased gave clear, written and informed consent to the posthumous use of their biological material,
- The nature and duration of the relationship between the parties, including any shared intentions to have children,
- The timing and circumstances of the request, particularly how soon after death the applications made,
- The legal status of the biological material, including any prior arrangement with fertility clinic,
- The welfare and best interests of any potential child, including emotional, financial and social considerations,
- The views of other interested parties, such as the deceased’s family members or estate representatives,
- Compliance with relevant state or territory legislation and ethical guidelines governing assisted reproductive technology.
Using biological material posthumously undoubtedly raises ethical questions, particularly if it involves much older parents. These questions include:
- What are the implications for the child who is born without one parent?
- How would the child’s welfare and the deceased partner’s legacy be managed?
- What support network does the remaining spouse have to raise a child on their own?
- Has the applicant undergone counselling or seen a psychologist before filing their application?
Having open and honest discussions about these issues and seeking counselling can help couples navigate the emotional complexities involved in storing biological material that could later result in life. Revisiting the conversation regularly, especially after significant life changes, is also advisable.
Attwood Marshall Lawyers – experts in estate planning and family matters
An experienced estate planning lawyer can help you navigate the complex laws surrounding reproductive material, particularly as they differ across Australian states and territories.
With dedicated Family Law and Wills and Estates departments, Attwood Marshall Lawyers can provide comprehensive support to ensure your wishes are respected and legally protected. Our experts are here to help you through every step of the process, providing peace of mind for you and your loved ones.
To have your Will reviewed or updated, or you want to discuss your options for putting embryos into storage, please get in touch with our Family Law and Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au.
You can also book online instantly by clicking here and booking through our website.
