Retaining embryos beyond legislated 5-year period: Bopping v Monash IVF Pty Ltd
Published on March 21, 2025 by Rita Yousef
This article was first published in the LexisNexis Australian Health Law Bulletin, Vol 32 Issue 9, 2024. Copyright © 2025 LexisNexis. All rights reserved.
Introduction
Bopping v Monash IVF Pty Ltd [1] is an interlocutory decision of the Supreme Court of Victoria (the Court) handed down on 1 August 2024 in relation to an application by Monash IVF to retain stored embryos beyond the legislated 5 years. The plaintiffs represented by Margalit Injury Lawyers, being part of a group of former patients of Monash IVF, supported the application and consented to the extension of the storage period.
The decision deals with the conflict between Monash IVF’s obligation to the Court to retain all evidence that is potentially relevant to the primary proceeding and the obligation set out in the Assisted Reproductive Treatment Act 2008 (Vic), [2] stipulating the time limit. The following questions were raised for consideration:
- Is the Court empowered to make an order in relation to retention of the embryos, where such an order would contravene a statutory provision?
- If the Court is empowered to make the order, should the order be made?
The primary proceeding
The primary proceeding is a class action against Monash IVF Pty Ltd, Adelaide Fertility Centre Pty Ltd (trading as Repromed) and Monash IVF Group Ltd. The lead plaintiff is Ms Danielle Bopping [3].
The plaintiffs underwent pre-implantation genetic testing (niPGT-A testing) on their live embryos as part of fertility treatment between May 2019 and October 2020. The plaintiffs allege that the testing produced false positives, resulting in erroneous conclusions that embryos were aneuploid or chromosomally abnormal and therefore were not transferred to the plaintiffs. They allege that they were not warned of the risks associated with the non-invasive niPGT-A testing. They allege that the accepted practise of other IVF providers that use niPGT-A testing is to combine it with embryo biopsy; niPGT is unreliable when used as the sole test. The plaintiffs seek damages for psychiatric injuries as well as financial losses [4].
It was assumed that the embryos represented “potentially relevant evidence” in the primary proceeding and that it may be necessary for an independent expert to retest the embryos [5]. Given that the solicitors for the plaintiffs in this application did not represent all the plaintiffs in the class, it was not possible to secure the consent of all plaintiffs, as required by the legislation, to retain the embryos beyond 5 years [6].
On 22 August 2024, the primary proceeding reportedly settled for $56 million. It is reported more than 700 patients joined the class action. The settlement is pending Supreme Court of Victoria approval [7].
The interlocutory application regarding the storage of the embryos
Generally, the defendant “would be obliged to take all necessary steps to preserve potentially relevant evidence” [8].
Regarding the embryos that are the subject of the interlocutory application, s 33(2) of the Act provides for the following obligations:
33 Storing embryos for later transfer
…
(2) A registered ART provider must not cause or permit the embryo to remain in storage except as permitted by section 34A—
(a) if one of the persons who produced the gametes used to form the embryo has specified a storage period of less than 5 years, after that period; or
(b) in any other case, after the latest of the following days—
(i) the day that is 5 years after the day the embryo was placed in storage;
(ii) if each responsible person in relation to the embryo consents to storage for a period of not more than 5 years in addition to the period referred to in subparagraph (i), the day that is the end of that additional period;
(iii) if the Patient Review Panel gives approval under section 33A for a longer or further period of storage, the day that is the end
Penalty: 240 penalty units or 2 years imprisonment or both.
The interlocutory application followed extensive correspondence between the parties since the commencement of proceedings in December 2020, regarding the storage of the embryos. As far back as April 2021, the defendant provided the plaintiffs with an undertaking that it would retain the embryos until the conclusion of the class action. However, the Act stipulates that embryos cannot be stored beyond 5 years without consent of the embryo holders and/or the approval of Patient Review Panel, depending on whether the embryo holder is able to give written consent [9]. The defendant unsuccessfully applied to the Patient Review Panel seeking permission to retain the embryos beyond the legislated 5 years. The parties initially sought, by consent, that orders be made in chambers to allow for the extension. However, without an explanation of the source of the Court’s power and relevant considerations, no orders were made. The defendant eventually filed a summons on 22 July 2024 to formally initiate this interlocutory application in the lead up to the expiry of the legislated period in August 2024 [10].
Daly AsJ heard the application. Given the somewhat unusual nature of the application in that the plaintiffs consented to the orders sought, Mr Jason Pizer was appointed as the “Contradictor” to the application [11].
Consideration
Her Honour’s consideration of the application was based on the following assumptions [12]:
- The Court would be permitted to make the order for retention of the embryos by virtue of its inherent jurisdiction.
- The owners of the embryos have not expressly requested disposal of the embryos. Therefore, discretionary factors weigh in favour of the order.
- If the defendant were to seek the express permission of each embryo holder, there is a significant likelihood that many will not respond.
- The making of separate applications to the Patient Review Panel on a case-by-case basis is unrealistic, especially given the pending expiry of the legislated period. In addition, in order for any application to be successful, “exceptional circumstances” must be established.
- There is a significant risk that potentially relevant evidence will be destroyed in the absence of the order.
Outcome
The application was refused. The Court held:
Accordingly, on balance, it would be desirable to make the retention order. However, for the reasons advanced by the Contradictor and summarised in the preceding section of these reasons, this Court is not empowered to make the retention order. The authorities make it clear that the reach of the inherent jurisdiction of the Court does not extend to authorise engaging in conduct which would otherwise be a contravention of a statutory provision. Further, the principles of statutory construction do not support a contention that the express and specific provisions of Part 3 of the ART Act can be overridden by the broad, but general case management and related powers of the Court under, among other things, its inherent jurisdiction [citations omitted] [13].
Her Honour found that the legislation does not provide a pathway allowing the Court’s inherent jurisdiction to be invoked for the purpose of securing an extension to the legislated period in this way [14]. Her Honour noted that s 33(2) does not include any term or phrase to allow such a pathway. If a term, such as, “or otherwise in accordance with law” had been included, the Court’s inherent jurisdiction may perhaps be invoked [15].
Accordingly, her Honour concluded that the Court is not permitted to “intrude upon” the legislative regime requiring the Patient Review Panel to determine applications for extension.16 There is an ultimate right of appeal to the Court and the right of appeal cannot be accessed without compliance with the proper pathway set out in the legislation [17].
Discussion
This decision highlights the difficulties in invoking a court’s inherent jurisdiction, where there is a statutory regime providing a comprehensive dispute resolution pathway, even where the statutory regime conflicts with a party’s obligations to the court. Further, the decision highlights the importance of utilising dispute resolution pathways well in advance of the expiry of legislated periods. The decision emphasises the limitations of the court’s inherent jurisdiction, despite the significance of the proceeding, the extent of the conflict with parties’ obligations to the court and any agreement between the parties.
Footnotes
[1] Bopping v Monash IVF Pty Ltd [2024] VSC 463; BC202410730.
[2] Assisted Reproductive Treatment Act 2008 (Vic), s 33(2).
[3] Above n 1, at [1]–[5]. See also: Supreme Court of Victoria: Monash IVF Group Proceeding — Bopping v Monash IVF Pty Ltd (S ECI 2020 04761), accessed 15 October 2024, www.supremecourt.vic.gov.au/areas/group-proceedings/monash-ivf
(Monash IVF Group Proceeding); and Monash IVF Class Action—Danielle Bopping v Monash IVF Pty Ltd (Supreme Court of
Victoria Case No S ECI 2020 04761) — Group Proceeding Summary Statement, accessed 15 October 2024, www.supremecourt.vic.gov.au/sites/default/files/202103/Monash%20IVF%20Group%20Proceeding%20Summary%20Statement%20%20filed%204%20March%202021.pdf (Monash IVF Class Action).
[4] Above n 1, at [1]–[5]. See also Monash IVF Group Proceeding, above; and Monash IVF Class Action, above.
[5] Above n 1, at [8]–[9].
[6] Above n 1, at [11]; above n 2, ss 32 and 33.
[7] “Fertility giant Monash IVF settles class action with more than 700 patients over inaccurate embryo screening test” ABC News 22 August 2024 www.abc.net.au/news/2024-08-22/monash-ivf-class-action-lawsuit-settlement-embryo/104256328.
[8] Above n 1, at [8].
[9] Above n 2, ss 33 and 33A.
[10] Above n 1, at [10]–[12] and [20]–[21]; and above n 2, ss 33, 33A, 34 and 34A.
[11] Above n 1, at [13].
[12] Above n 1, at [47].
[13] Above n 1, at [48].
[14] Above n 1, at [49].
[15] Above.
[16] Above n 1, at [50].
[17] Above n 1, at [50]–[52].
