THE CANADIAN LEGAL RESPONSE TO THE DISPUTE OVER FROZEN EMBRYOS AND THE LGBT DILLEMMA.
Ay Dios Mio! Hollywood starlet Sophia Vergara is in the midst of a legal battle over the use of her own ova and previous partner’s sperm, which remain frozen as in vitro embryos in a Beverly Hills fertility clinic. This type of dispute is not limited to Hollywood’s elite, as the number of individuals participating in In Vitro Fertilization (hereinafter “IVF”) in both Canada and the United States has grown drastically over the last few decades. With this increase in participation has come a new line of litigation between spouses over embryo disposition, often concerning the use of their surplus embryos. As is the case with Ms. Vergara, couples frequently sign embryo disposition agreements or consent forms prior to the creation of their embryos that outline how they would like store, donate or destroy their surplus embryos in the future. Ms. Vergara’s agreement specifies that any changes to the state of her embryos must be mutually agreed upon. Given that her position is to keep the embryos frozen indefinitely, this contract appears to be in her favor.
Despite this being the case, it is not necessarily a certainty that a contract like Sophia’s would be given any legal weight, at least in Canada. An issue that has become apparent is the Canadian government’s lack of regulation on licensees providing IVF services, permitting spouses to sign these agreements without any mandatory counselling or understanding of the legal implications of signing the dotted line. One might ask why this matters? It raises the question as to whether a couple signing such an agreement had the ‘free and informed consent’ required to make a decision regarding the use of their embryos by Canadian legislation.
The Assisted Human Reproduction Act (“AHRA”) and its AHR Consent Regulations regulate the law in this arena. Section 8 of same requires that spouses and common law partners provide joint consent to use or donate in vitro embryos. This legislation further allows one spouse to unilaterally withdraw his or her previously given consent prior to the embryos being used, thawed or designated for a specific purpose (see AHR Consent Regulations s 14(1) and (3)). If Ms. Vergara’s legal battle were on Canadian soil, given her favorable contract and the AHRA’s provisions on joint consent, her ex-partner would be unable to ‘use’ the embryo’s to reproduce without her approval.
It is important to note that these provisions only apply to couples who use their own sperm and ova. Where couples use donated sperm and ova to create an embryo, as is the case with same sex couples, the law is quite different. In the event of a same sex couple (or an opposite sex couple using donated sperm or ova) separating, the spouse that is the genetic contributor will be given exclusive use and control over the embryos (AHR Consent Regulations s 10(3)). This aspect of the AHRA has been subject to controversy: it is clear that is does not account for the financial contributions shared by spouses to create the embryos or their personal arrangements, including the decision often made by lesbian couples to have one spouse donate her eggs and the other spouse undergo implantation.
Another matter of concern is the AHRA’s failure to state whether the embryos have to remain in storage or be destroyed where there is a lack of like-minded consent. In 2012, the British Columbia Supreme Court encountered its first dispute over surplus embryos (see Nott case). Although not entirely analogous to Ms. Vergara’s case, as the couple had successfully conceived two children through IVF treatments, they were faced with a similar dilemma regarding the ‘custody’ of their frozen embryos following their separation. The consent form signed by Mr. and Mrs. Nott at the outset of their IVF treatment gave the clinic the authority to destroy the embryos if both parties did not consent to their transfer to another clinic. Unlike Mrs. Nott, Mr. Nott refused consent in order to prevent the conception of another child using their embryos. The very essence of the parties’ original agreement, which calls for the destruction of the embryos in the event of incompatible consent, appears to contract around the joint consent provisions in the AHRA.
The courts have yet to clarify whether such agreements are binding. As noted by academic Stefanie Carsley in the Canadian Journal of Family Law (vol. 29), if the courts chose to treat embryo disposition agreements as domestic contracts that are legally enforceable, this may enable spouses to circumvent the AHRA and its consent regulations. This will allow embryos to be used for donation, reproduction or to be disposed of, even if one or both spouses has changed their mind or, like Mrs. Nott, wishes to have more children down the road. Identifying embryo disposition agreements as domestic contracts will have immense consequences, as the agreements will become subject to the high threshold set by the courts for judicial intervention (see Miglin case). In plain meaning, the courts will be restricted in interfering with the spouses’ original decision. Unlike other contracts in the realm of family law, embryo disposition agreements do not distribute property or finances or arrange custody of and access to children. Arguably, they deal with a far more complex issue: whether parties will be able to create life. Mrs. Vergara’s ex- partner has taken the stance that embryos should be defined as life, rather than property, since they are created for the purpose of life. Canadian law has made it clear that embryos are not life as they are not people and definitely not children (see Daigle v Tremblay ; Winnipeg Child and Family Services (Northwest Area) v G(DF)).
On the other hand, there are mixed judicial responses regarding the treatment of embryos as property. In C.C. v. A.W, the Alberta Court of the Queen’s Bench held that the surplus embryos were C.C’s property, although A.W (her friend and former boyfriend) was the genetic contributor. The court asserted that the embryos ‘were chattels that could be used as she saw fit’. This approach was based on the financial contribution borne by each party in creating the embryos; in this case C.C. had paid for the embryos creation and storage. Although this case was decided before the AHRA and its corresponding regulations took effect, giving it limited authority on this point, it indicates that the court has been willing to divide embryos as they would property, based on each party’s financial contribution to same.
It is clear that much of the law in the area of fertility is a work in progress and cases like Ms. Vergara’s continue to shape it. Although there is much uncertainty surrounding the weight of embryo disposition agreements, women in Ms. Vergara’s position can sleep sound at night knowing that they will not be forced to become a genetic parent against their will.