Prior to undergoing cancer treatment some patients will freeze their sperm or eggs in order to preserve them. Sometimes people will combine their fresh sperm or egg with their partner’s genetic material to create embryos that are then frozen. This maintains the option of having children even if treatments render the patient infertile. At a later date the embryos can be thawed and transferred into the patient, the partner, or a surrogate’s uterus. Thawing and transferring frozen embryos can be more effective than thawing frozen sperm or egg and creating embryos at a later date. From a legal perspective, however, this approach contains a greater level of risk.
Suppose a couple created and froze embryos and then later divorced. It is unlikely both parties will want to have a child, or another child, with each other. It is possible that one person will want the embryos to be destroyed or donated to research. The other person may want to keep the embryos frozen for future use or to donate them to another couple. If one of the individuals is infertile, those embryos may be his or her last and only chance to have a biological child. How would this dispute be resolved? And what can be done to prevent this kind of issue from arising?
The law in Canada provides little guidance on this issue and it is difficult to predict what interest would prevail – the right to procreate? Or the right not to procreate?
The Assisted Human Reproduction Act – the predominant reproductive law statute in Canada – does not address this issue. And thus far any Canadian divorce cases involving the division and/or disposition of frozen embryos have not resulted in a reported decision that provides us with much guidance.
There are, however, two Canadian cases that are somewhat relevant.
In 2012 a lesbian couple went to court over frozen donor sperm they had purchased. They had used the sperm to have two children together but later separated. One of them wanted to use the sperm to have a child with her new partner and the other would not consent. The court considered many factors, including the fact that the woman who refused to consent would not become a biological parent or have parental obligations arising from the use of the sperm. The court decided to divide the frozen sperm equally between the women.
In 2005 an Alberta man donated sperm to a friend so that she could create embryos through in-vitro fertilization and have children. Although he was only supposed to be a donor, he successfully sought access after she gave birth to twins. The friendship deteriorated. He did not want her to use the frozen embryos given the acrimonious relationship; she asked the court to release the remaining frozen embryos to her. The court decided that the sperm was an “unqualified gift” and, much like we learn as kids, there are “no take backs” when we give something away. We don’t know for sure what would happen in a similar case if the sperm was not from a donor but a partner of a patient.
There are several American decisions that provide further guidance on the matter. Although U.S. decisions are not binding in Canada, our courts often give weight to case law from other jurisdictions.
Upon reviewing the American case law, there is a clear trend that the courts in the U.S. take very seriously the right of a person not to procreate. When a couple divorces and has remaining frozen embryos, courts are extremely reluctant to make decisions that would result in a person becoming a biological parent unwillingly. The impact of these precedential cases is that, depending on the circumstances, it is possible a cancer survivor might be unable to use the embryos he or she froze in order to have children in the future, unless the partner consents. This would, of course, be devastating.
From a purely legal perspective it would be prudent to freeze not only embryos, but also the person with cancer’s sperm or eggs. In case the relationship deteriorates or the donor/partner changes his or her mind, this further protects one’s ability to have children because the patient would be entitled to use his or her own genetic material, which could then be combined with the genetic material of a donor or a new partner.
This approach can also help clinics reduce the risk of becoming caught in a legal battle. Only if the thawed sperm or egg does not result in a pregnancy would the disposition of the frozen embryos have to be determined. It is noteworthy, however, that this strategy is more costly for patients than freezing embryos alone.
It is also prudent for patients and their partners to consider all possible contingencies, including divorce and separation, death, and the possibility of people changing their minds – and to document their specific wishes in the event of each contingency by virtue of clinic consent forms (or other written agreement if the clinic forms are not sufficiently comprehensive).
From the case law that does exist it is clear that courts place great emphasis on written agreements and often defer to the agreed upon disposition decision if one was made that contemplated the applicable circumstance. Couples should pay serious attention to any consent forms or agreement they sign in relation to the future use and disposition of their sperm, egg and/or embryos. Paperwork might seem like a formality, but these decisions can be amongst the most important decisions of a person’s life.
Fertility clinics should ensure that their consent forms and processes meet the standard for proper informed consent. They may even want to encourage their clients to obtain legal advice to ensure patients, partners and known donors truly appreciate the implications of the forms and how they could impact a person’s desire – or not – to become a biological parent in the future.
Lisa Feldstein is the principal lawyer at Lisa Feldstein Law Office Professional Corporation. She holds a B.A. from the University of Guelph and a J.D. from Osgoode Hall Law School. Lisa practices in the area of Family Health Law™, which includes providing advice on reproductive law and other health law matters. Lisa previously practiced health law with Canada’s largest health law boutique providing advice to hospitals and other health care organizations. She has also worked at two of Toronto’s teaching hospitals in the areas of research ethics and mental health law.
Lisa has been widely published, including in the Canadian Journal of Family Law, Hospital News and the National Post. She has presented on reproductive law issues at numerous institutions including the University of Toronto, Mount Sinai Hospital, Markham Fertility Centre and the 519 Church Street Community Centre. Lisa’s reproductive law practice is focused on drafting surrogacy and gamete donation agreements, performing declarations of parentage, and advising fertility clinics on issues such as consent, privacy and research. Lisa has been teaching negotiation at Osgoode Hall Law School since 2010. She is an executive member of the Ontario Bar Association health law section and a director on the board of BALANCE for Blind Adults.