A 45-year old Australian woman who was separated from her husband but who wanted to undergo in vitro fertilization (“IVF”) to become a mother was initially prevented from doing so because the fertility clinic told her she needed to first get consent from her estranged husband. The clinic was relying on a provision in the state of Victoria’s Assisted Reproductive Treatment Act (the “Act”) which stated that “the welfare of persons born or to be born as a result of treatment procedures are paramount.”

Although the woman had frozen some of her own eggs for use after her divorce, she wanted to try IVF right away even though she was not legally divorced yet, because she had been told the likelihood of success was higher when fresh eggs were available. However, she was advised that she could only use her own fresh eggs while she was still under the age of 46.

Fortunately for this would-be mother and others like her, an Australian federal court held that requiring her estranged husband’s consent to the IVF treatments would be, in effect, discriminating against the woman based on her marital status. The court ruled that she does not need her estranged husband’s permission to proceed after all. In its ruling, the court made it clear that the decision would not impact the husband’s legal rights in any way, nor would he have any parental rights or responsibilities for any children conceived by his estranged wife.

Based on this ruling, other women in the state of Victoria who are separated from their spouses but want to use IVF and donated sperm to have children will no longer need to worry about getting spousal consent, as the court deemed that part of the Act invalid.

If you are considering starting or adding to your family via surrogacy, consulting with a skilled, experienced surrogacy attorney is one of the first things you should do. Surrogacy laws vary widely from state to state and country to country.  

At the Surrogacy Law Center, PLC, we offer caring and professional assisted reproductive technology services to individuals and families, with staff that speak Mandarin, Cantonese, French, and Spanish. We are based in Carlsbad, California and are dedicated to drafting comprehensive surrogacy, egg, sperm and embryo donation contracts as well timely and thorough parentage orders. No matter what your legal needs may be, we are here for you. Contact us today to start your journey!