Frozen Embryos: Property or People?

In the 2024 case of Leena & Leena¹, Justice Riethmuller was asked to consider whether succumbed embryos were ‘property’ capable of being dealt with under section 79 (or section 90SM in the case of de facto couples) – being the section of the Family Law Act 1975 (“the Act”) which gives the power to make orders with respect to the alteration of property interests.  

The facts of that case were that the parties had separated since creating the embryos and had both consented to allowing the embryos to succumb. The applicant sought orders to retain the embryos to allow her to dispose of them personally, whereas the respondent sought orders for the already succumbed embryos to be destroyed by the clinic at which they were once stored as viable embryos.  

In Leena, Justice Riethmuller cited the High Court authority of Kennon & Spry which provides that:  

“The word "property" in section 79 is to be read as part of the collocation "property of the parties to the marriage”. It is to be read widely and conformably with the purposes of the Family Law Act.”²  

Ultimately, Justice Riethmuller found that succumbed embryos are property capable of being dealt with under section 79 and section 90SM and went further to identify a secondary source of power which would allow the Court to make orders with respect to the succumbed embryos, being section 114 of the Act (which provides the Court power with respect to injunctive orders). Justice Riethmuller made orders which provided for the embryos to be destroyed, in line with the orders sought by the respondent.  

In the 2026 case of Greaves & Greaves³, Judge Cope was similarly asked to consider whether embyros which were still viable were also considered ‘property’ for the purposes of section 79 and section 90SM of the Act.  

The facts of that case were, broadly, that during the relationship the parties had created embryos using the respondent mother’s egg and donor sperm. From those embryos created, the parties had one child at the time of trial. Two viable embryos remained in storage which the respondent sought orders to retain (to potentially use in the future), which the applicant opposed on the basis that she would regard any children that eventuate from that source as her children as well, given the living sibling. The applicant did not seek orders to retain the embryos for use and accordingly, without the Court’s intervention the de facto position was that the embryos would be destroyed per the clinic’s contract entered into with the parties at the time of creation.   

Ultimately Her Honour adopted the reasonings of Justice Riethmuller to arrive at the same conclusion in respect of whether the viable embryos were property. More interestingly however, was Judge Cope’s considerations as to who should then retain that property weighing up the contribution factors, current and future circumstances factors and a consideration of the overall justice and equity of the matter, including: 

1. who’s decision it was to create the embryos;   
2. who met the financial cost of the creation and storage of the embryos;   
3. who contributed the genetic material to create the embryos; and   
4. whether there exists a capacity for the respondent to have children without these embryos. 

Ultimately, Judge Cope ordered for the embryos to be retained by the respondent on a final basis.  

What does this mean for me?  

The key takeaway from both Leena and Graves is that, while there is yet to be a Full Court of the Federal Circuit and Family Court of Australia decision in relation to the issue,  it is important that parties keep front of mind that the emerging case law indicates a willingness of the Court to treat embryos as property. Accordingly, it is then important that separated parties with embryos deal with who is to retain the embryos (if anyone) at the time of negotiating and finalising their property settlement to avoid future litigation on the issue.  

Another key consideration is perhaps that couples who are considering creating embryos may wish to, before doing so, give consideration to entering into a Financial Agreement pursuant to section 90B or 90C of the Act (or their de facto counterparts) setting out what should happen to those embryos in the event of separation.   

¹ Leena & Leena [2024] FedCFamC1F 135. 

² Kennon v Spry [2008] HCA 56; 238 CLR 366 at [64].  

³ Greaves & Greaves [2026] FedCFamC2F 276.