Most people don’t realise just how deeply the law is woven into the fabric of our lives. Legal rights from embryo to estate shape our existence before birth, throughout life, and even after death. Whether it’s about who can make decisions for us, who controls our assets, or what happens to our bodies when we die, legal frameworks are constantly at play, often quietly operating in the background.
Let’s take a walk through how the law shapes and follows us throughout life’s major stages.
Before You’re Born: Legal Rights from Embryo to Estate Begin Early
Yes, your legal story can begin before birth. In cases involving assisted reproductive technologies like IVF, people often create and store embryos for future use. The law does not give embryos rights of their own and treats them as the property of the intended parents.
This becomes particularly relevant in complex situations like divorce or separation, where parties may treat frozen embryos as marital property and include them in settlement proceedings. This was seen in Leena v Leena[1]where during a divorce, the couple went to court over the destruction of embryos in an IVF facility. In this particular matter, both parents had provided genetic material towards the embryos, therefore the court ordered third party destruction to avoid bias. Note that the courts determine each case differently based on its specific facts.
In some cases, embryos may also become part of probate matters if a parent dies and hasn’t addressed them in their will. Without clear instructions, ownership or control of embryos could default to the surviving partner or become subject to legal dispute. It’s a fascinating intersection of science, ethics, and property law.
As a Child: When Parents Step In
During childhood, individuals are not considered to have full legal capacity. Instead, their parents or legal guardians act on their behalf. This arrangement gains greater significance in cases involving children with disabilities—physical, developmental, or cognitive—where parents or guardians may need to provide ongoing support and make decisions well beyond childhood.
In these circumstances, parents may need to seek formal legal authority[2], such as guardianship or power of attorney, particularly if their child is unable to make or communicate decisions independently.
The case of Secretary, Department of Health and Community Services v JWB and SMB related to making health case decisions of a child that would better her life by the decision of the court on application of her parents. Although the matter before the court was radical—a hysterectomy for the child—the medical evidence showed it would improve her life through mood stabilisation and other benefits. The child could not make a reasoned decision due to her intellectual disability. The court ruled that such a procedure required its approval, given the complexity of its implications and the range of factors that needed consideration.
Since children (especially those with disabilities) often cannot legally execute these documents themselves, applications must go through a tribunal, which assesses the situation and grants appropriate authority to act in the child’s best interests.
Adulthood: Legal Independence Begins
Once an individual reaches the age of 18, the law typically recognises them as having full legal capacity. They take responsibility for their own medical, financial, and personal decisions and exercise legal autonomy.
From voting and signing contracts to making healthcare choices, adulthood marks a new phase of independence. But as life continues, circumstances can shift, and the ability to make informed decisions may not remain permanent.
Later in Life: Planning Ahead for Legal Rights from Embryo to Estate
As we age, our mental capacity may decline, sometimes gradually, sometimes suddenly, due to conditions such as dementia or Alzheimer’s disease. Planning ahead becomes essential to ensure that your affairs can continue smoothly even if you’re no longer able to manage them yourself.
Two key documents come into play here:
- Enduring Power of Attorney (EPOA): Appoints someone to manage your financial and legal affairs if you lose capacity.
- Appointment of Enduring Guardian (AEG): Grants authority to someone to make health and lifestyle decisions on your behalf.
The case of Scott v Scott[3], shows how difficult it can be for family members when determining the best outcome for a person they all cared for, due to the creation of such documents created after mental decline. The court examined whether the documents were valid, identified who would best look after the person if the documents led to a wrong decision, and assessed the validity of any subsequent decisions made under those documents. It also highlights the lengthy legal battles that loved ones may have to go through.
These documents take effect only after you lose the ability to make decisions, and you must sign them while you still have full legal capacity. Without them, your loved ones must go through lengthy legal processes to step in on your behalf—processes that early planning can prevent.
After You’re Gone: Property, Embryos, and Your Final Wishes
Even after death, legal considerations continue. Everything you own, whether it’s physical property like your house or car, intellectual property like copyrights, or even stored embryos, still legally belongs to you and becomes part of your estate.
If you have prepared a valid will, your executor will distribute your assets according to your wishes. If not, the laws of intestacy will govern your estate and may not reflect your personal intentions.
One surprising legal fact: your body becomes the responsibility of your executor. While you can include instructions in your will for your burial or other final arrangements, these instructions are not legally binding (bar cremation which is legally binding[4]). That’s why it’s so important to appoint an executor who understands and respects your values, because in the absence of legal obligation, it comes down to trust.
In Summary: Understanding Legal Rights from Embryo to Estate
From embryos to estates, the law adapts to the different stages of life. At times, others exercise your rights on your behalf. At other times, you carry the full weight of decision-making yourself. And eventually, someone else may carry out your final wishes.
Understanding how your legal rights shift over time, and taking proactive steps to plan for each stage, isn’t just wise, it’s empowering. Whether you make guardianship arrangements, sign an enduring power of attorney, or prepare a clear will, you protect your wishes, rights, and legacy at every stage.
Need Help Planning Ahead?
If you’re navigating any of the stages discussed, from guardianship applications to estate planning, consider speaking to a legal professional who can guide you through your options with care and clarity.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
[1] Leena & Leena [2024] FedCFamC1F 135
[2] Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218
[3] Scott v Scott [2012] NSWSC 1541
[4] Public Health (Disposal of Bodies) Regulation 2002 NSW Part 6, Reg 34
