If you have stored reproductive tissue (embryos and gametes) this guide is for you.

Storing reproductive tissue is becoming more common.  Couples are accessing reproductive technologies to have a baby (IVF) and individuals are making the decision to keep the baby window open a bit longer, or storing tissue as a preventative measure in the circumstance where certain medical treatments may close that window.

Have you considered what will happen to your stored reproductive tissue if you and your partner:

 separate or divorce?

 lose capacity?

 die?

We have created this guide to help you make sure that your wishes have the best chance of being upheld and to reduce the likelihood of disputes.

STEP 1 YOU & YOUR SPOUSE

Lean in. You need to have a conversation with your spouse about what you both want to happen to any reproductive tissue or embryos, if:

 you separate or divorce; or

 one or both of you lose capacity or die.

Studies show that up to 86% of interviewed respondents are willing to consider the use of stored embryos after the death of their spouse. Is this something your spouse would support?

Have you or your spouse considered providing consent to retrieval of sperm on death?  You most definitely don’t have to, but this is something that some couples want.`

While this may sound unlikely, there are several legal cases where a judges have made decisions in these circumstances.

If you have an unrelated donor, have you considered their wishes? Do they have any interest if you are no longer able to make decisions?

STEP 2 CLINIC OR STORAGE PROVIDER

Check with your clinic or storage provider to find out:

   what their terms & conditions are;

   what their proposed course of action is in the event of separation, incapacity or death; and

   what consents you have provided.

If what’s in place doesn’t align with your wishes, talk to your clinic or storage provider about changing your instructions.

Do you want to leave the decision making to the clinic, storage provider or an external regulator or Court? We think not.

It is important that you clearly communicate your wishes and that any consents meet the posthumous reproductive tissue legislative requirements for witnessing, etc.

You may need to consider an alternative clinic or storage provider if they cannot give effect to your desired intentions.

STEP 3 FORMAL DOCUMENTS

Make sure your intentions are outlined in your enduring power of attorney and will.

As best practice we also recommend signing a formal witnessed consent.  This documentation may be offered to you by your doctor or storage provider.

Under the NHMRC Ethical Guidelines, gametes can only be used after the death of the gamete provider, if the deceased has left “clearly expressed and witnessed directions”.

Each State of Australia has different legal requirements for assisted reproductive tissue use.

The law in Queensland permits the removal of tissue provided a designated officer believes the deceased hadn’t objected and the next of kin consents. Other States require consent to be written and witnessed.

Does your estate plan consider reproductive tissue in storage?

If there is a dispute, judges will most likely give effect to your original consent and instructions.

On death, should the decision of what to do with any stored reproductive tissue rest with you or your surviving spouse, or the deceased’s family?

Consider what your wishes are and put something in place.  Something is better than nothing.

For questions or queries shoot an email to our Director Nicky Grummitt at nic@glaw.co.com

You may also be interested in our FREE15 minute consultation with Nicky. You can book in here calendly.com/g-law/free15