‘Property Orders Are Appropriate to Deal with the Issue’: The Fate of Frozen Embryos upon Divorce
With plummeting birth rates across the continent, many Asian countries are (re-)considering legal and policy frameworks around Artificial Reproductive Technology (ART), such as In-Vitro Fertilisation (IVF). Changes are aimed at both increased access to ART and its increased provision, such as via a greater number of licensed IVF clinics. As ART becomes more common, new challenges might arise, such as how frozen embryos should be treated in case of separation or divorce. This question interlinks with the potential for finding property rights in embryos, and prevalent limitations across Asia that state ART/IVF is only available to married couples.
This presentation takes a recent Australian decision on the fate of frozen embryos following divorce and considers how its findings might play out in a jurisdiction like Hong Kong (which will be used as a case study). Delivered by one of the family court’s most well-regarded judges (justice Grant Riethmuller AM), the decision in Leena & Leena (2024) identified that frozen embryos are indeed property, and - consequently - subject to matrimonial property division in case of divorce. Whilst this, in principle, opened the way for one party to obtain the embryos for use (which is unlikely to be ordered anywhere in the world, even if there are no marriage requirements in ART laws), the case may be especially important for the way destroyed embryos are treated, including in jurisdictions such as Hong Kong.