Last updated 27 August 2019

Pre-implantation genetic diagnosis

Other legal issues can arise as a result of using assisted reproductive technology services. The law currently permits a couple with numerous embryos to have them screened for certain genetic disorders. This screening process is known as pre-implantation genetic diagnosis (PGD). Technically, PGD could be used to facilitate sex selection of embryos, meaning that people could choose for a woman to be implanted with male or female embryos for reasons of family balancing. Australian IVF providers are extremely unlikely to provide such a service, based on the fact that the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (ART guidelines) prohibit this practice except in cases of serious genetic gender-linked conditions. To some extent, this may have contributed to fertility tourism, where people travel to other countries where PGD for non-medical sex selection is performed.

Ownership of embryos after separation

Disputes sometimes arise about the ownership of frozen embryos where a couple either separate or divorce. Usually, an agreement would have been made about the future use of the embryos, where the couple determine what should be done with embryos in such situations. The consent requirements outlined in the National Health and Medical Research Council’s ART guidelines require that couples address the issue of the future storage and use of their gametes/embryos in circumstances where one of them may either die or lose decision-making capacity, or where the couple separates.

In most cases, the frozen embryos cannot be used for reproductive purposes unless both partners agree. This is reinforced by the ART guidelines that state that consent should be provided by all parties involved, for each procedure. However, cases have arisen in other countries where women have sought to use embryos that were created with a partner’s sperm, following the couple’s separation and where the former partner withdraws consent. In one English case, frozen embryos were created with the former male partner’s sperm, and the use of those embryos represented the woman’s only remaining opportunity to have her own biologically related child. This argument was not successful in persuading the court to give the woman permission to use the frozen embryo(s) in an IVF procedure.

If a dispute about the use of a couple’s embryos were to arise following the couple’s separation, the National Health and Medical Research Council’s ART guidelines allow clinics to continue to store the couple’s embryos until the dispute is resolved.