Thursday Thinkpiece: Carsley on Rethinking Canadian Legal Responses to Frozen Embryo Disputes

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Rethinking Canadian Legal Responses to Frozen Embryo Disputes

Stefanie Carsley
Canadian Journal of Family Law issue #29(1)
Copyright © 2015 Reprinted with permission from The Canadian Journal of Family Law

Excerpt: Introduction and Part I
[Footnotes omitted. They can be found in the original via the link above]

INTRODUCTION

In December 2012, the British Columbia Supreme Court was faced with the first Canadian “custody” dispute over frozen embryos. Like many Canadians who have difficulty conceiving, Gregory and Juanita Nott turned to in vitro fertilization (IVF) treatment in the hope of building their family. They created embryos using their own ova and sperm and Mrs. Nott successfully gave birth to two children. Following treatment in 2004, the couple was left with four embryos, which they jointly consented to freeze and store for future reproductive use. Since then, however, Mr. and Mrs. Nott’s relationship has become strained; they separated in 2011 and then sought to obtain a divorce. In July 2012, they received notice that their fertility clinic was closing down and a request that they jointly consent to their embryos being transferred to another clinic for future storage. The couple had signed a consent form, at the time of the embryos’ creation, saying that should either party refuse to consent to the embryos being transferred, the clinic would have authority to destroy them. Mrs. Nott readily agreed to the transfer as she wishes to use the embryos in an attempt to have more children. Mr. Nott refused to authorize the transfer, as he wants the embryos to be destroyed. In December 2012, Mrs. Nott successfully obtained an injunction to prevent the embryos’ destruction, until their divorce trial can be heard and they can seek a judicial determination regarding what should happen to their embryos. Media reports suggest that the case was to be heard in June 2013, but it is unclear whether it proceeded to trial. As of June 2014, a decision had yet to be released.

This dispute arose in part as a result of section 8 of the federal Assisted Human Reproduction Act (AHRA) and its associated AHR Consent Regulations. This legislation requires that spouses or common-law partners provide joint consent to use or donate in vitro embryos created for their reproductive use, and also allows one spouse or partner to unilaterally withdraw his or her previously given consent, in writing, prior to the embryos being used, thawed or designated for a specific purpose. One effect of these laws is that where a couple, like Mr. and Mrs. Nott, have created embryos from their own ova and sperm in order to build their family, one party may change his or her mind and prevent the other from using these embryos to have more children.

This case has also come about because of uncertainty under the law as to whether embryo disposition agreements or consent forms are legally enforceable. While the AHRA states that embryos cannot be used or donated without the consent of both spouses, it does not clarify what will happen to a couple’s surplus embryos in the event the parties cannot come to an agreement and provide compatible consent. In other words, it does not say whether the embryos would have to remain in storage or could be destroyed. Quebec has sought to address this issue through its Regulation Respecting Clinical Activities Related to Assisted Procreation (Regulation Respecting Assisted Procreation), which stipulates that where embryos have been created but not used, spouses must express their intentions in writing regarding what should happen to their embryos in the event they disagree, one dies, their relationship or marriage ends, or the woman for whom the embryos were created is no longer of childbearing age or physically able to use them. While not legally required elsewhere in Canada, Canadian fertility clinics also ask their clients to sign consent forms – prior to embryos being created or frozen – indicating what should happen to embryos if the parties can no longer provide compatible consent. If these agreements are legally enforceable then they may enable parties to contract around the right to revoke consent and allow for embryos to be used for reproduction or be donated, even in the event one spouse changes his or her mind. They may also, however, provide that embryos will be destroyed, even if one spouse, like Mrs. Nott, wishes to use them to have more children.

This article examines these approaches towards resolving disputes over surplus embryos and considers whether they support the express objectives of the AHRA and Quebec’s Act Respecting Clinical and Research Activities Relating to Assisted Procreation (Act Respecting Assisted Procreation) to protect the health and well-being of women, to promote the principle of free and informed consent and to recognize that women are more directly affected than men by the use of assisted reproductive technologies (ARTs). It suggests that while Canadian governments and lawmakers have paid lip service to these objectives, current laws seeking to regulate embryo disposition disputes do not fully support these statutes’ expressed intentions in practice. Adopting a contract model or allowing one individual to prevent his or her spouse or partner from using embryos for procreation overlooks the experiences of women who undergo in vitro fertilization treatment and also does not accord with how Canadian law and public policy has responded to similar conflicts between spouses, or to agreements that seek to control or restrict women’s reproductive choices. This article thus considers alternative means of responding to these disputes and ultimately provides suggestions for law reform.

This piece focuses specifically on how Canadian laws seek to regulate disputes where both spouses have used their own ova and sperm to create embryos. Where same-sex or opposite-sex couples use donated sperm or ova to conceive, the law is quite different; should their relationship dissolve, the spouse who was a genetic contributor will be given exclusive control over these embryos. Although the latter situation raises significant issues and is similarly vulnerable to criticism, a thorough exploration of the problems associated with this approach goes beyond the scope of this paper.

This article’s analysis contributes to longstanding debates within Canada regarding the merits and problems with allowing spouses to jointly control embryo disposition and sign consent forms indicating their intentions. In doing so, it takes into account the current state of Canadian law and public policy, the growth of empirical research on IVF and the development of increased case law relating to the disposition of reproductive materials. It also builds upon Canadian scholarship that has debated the benefits and risks of applying a contract model in family law contexts, and which has advocated for a more “women-centered” legal approach towards the regulation of assisted procreation.

Part I argues that enforcing agreements or consent forms does not take into account studies and jurisprudence that call into question whether parties are in a position to make autonomous, informed decisions regarding embryo disposition prior to undergoing IVF treatment. In addition, Canadian law pertaining to domestic contracts, surrogacy and child adoption resists treating agreements in these contexts the same as binding commercial contracts because of similar concerns about whether such agreements reflect free and informed decision-making.

Part II argues that allowing one individual to prevent his or her spouse from using their embryos for reproduction ignores the ways in which women are especially affected by the creation of embryos and disregards the costs of IVF. These laws seem to provide Canadians with the equivalent of a right not to procreate or parent, even though Canadian law relating to abortion, adoption and parentage or filiation do not provide similar rights, thus calling into question whether such rights ought to exist in relation to IVF embryos.

Part III then explores alternative means of resolving disputes over frozen embryos. It considers how legislatures and courts in other jurisdictions have responded to conflicts between spouses over embryo disposition and, in turn, how Canadian courts have dealt with analogous situations involving control over genetic material. These varied approaches raise similar issues to the Canadian contractual or joint consent models, and would also conflict with Canadian law and public policy relating to reproductive rights and the noncommodification of reproductive materials.

This article concludes by providing recommendations for how Canadian legislatures and courts might resolve disputes between spouses over their surplus embryos, in a manner that recognizes the experiences of individuals who undergo IVF treatment and the ways in which women are uniquely affected by assisted reproductive technologies. Genetic contributors should be unable to prevent their spouses from using embryos they have created for procreative purposes, and in the event that the parties divorce or separate and both wish to use them, a female spouse should be given priority in light of the greater health risks and complications associated with IVF for women than for men. Agreements between spouses signed prior to a woman undergoing IVF ought to be legally unenforceable. Moreover, some of the issues that arise in relation to embryo disposition could be resolved by providing for increased and mandatory counselling and by clarifying the parental rights and obligations of men or women who no longer wish for their spouse to use their frozen embryos for procreation.

EMBRYO DISPOSITION AGREEMENTS AND CONSENT FORMS

While Canadian courts have yet to clarify whether agreements between spouses or clinic consent forms are legally binding, it is worth exploring the implications of adopting a contract model in this context. On this approach, the decision parties made prior to creating embryos would be binding, unless spouses jointly agreed to update their consent form or agreement at a later point in time. Thus if spouses had elected, for instance, to donate their embryos for reproduction in the event of a disagreement, they would be bound by this decision even if, at a later date, one of the parties no longer finds this option palatable. Importantly, their original choice would also be enforced if one party still wishes to use the embryos for reproduction. These agreements might also, however, allow spouses or partners to potentially circumvent the AHRA and AHR Consent Regulations, which require joint consent to use or donate embryos. For instance, parties might have stipulated in their agreement that if they disagree or divorce, one spouse will be uniquely given control over the embryos, or a third party, such as a judge or clinic, will be given authority to make a decision. The only decisions that could not be binding would be those that would clearly violate Canadian law and public policy.

This contractual approach has long received support from Canadian scholars, ethicists and physicians. Twenty years ago, when Canadians were first debating how best to address potential conflicts over frozen embryos, the government-appointed Royal Commission on New Reproductive Technologies recommended that gamete providers be jointly required to make decisions regarding the disposition of their embryos prior to gametes being retrieved or embryos created, and to indicate their preferences in consent forms that would be binding for the clinic involved. Some Canadian scholars similarly proposed that while it might be appropriate for the Canadian government to establish a default for what would happen to embryos in the event that the genetic contributors divorce or die, Canadians ought to be able to contract around this default using consent forms.

Support for a clear-cut contractual approach is not surprising. It was thought that enforcing agreements would prevent disputes between spouses and litigation over embryo disposition. In theory, using agreements to resolve disputes would also mean that neither party would be forced to dispose of their embryos in a manner that they had not previously contemplated; spouses would have been aware precisely of what would happen to their embryos should certain events arise and couples would have been in a position to negotiate at that time what they felt would be the most appropriate manner to resolve any future disputes. The parties would be informed as to their options, and would be free to refuse to consent to treatment should they be unable to come to an agreement.

It is far from clear, however, that Canadians are in a position to provide free and informed consent regarding embryo disposition at the time these agreements and consent forms are signed. As the number of individuals undergoing IVF has grown over the last three decades, so has the social science research available on the experiences of individuals undergoing treatment and the decisions they make regarding their frozen embryos. This literature demonstrates that many individuals change their minds about whether they would like to use, donate or destroy their surplus embryos following IVF treatment and especially following the birth of a child. The lack of mandatory counselling and legal advice for individuals undergoing IVF in Canada may mean that spouses make decisions without fully understanding the legal implications of their choices. In turn, judicial decisions from Canada and abroad also suggest that individuals, and especially women, who make decisions regarding their embryos may be so eager to begin the IVF process that they may not contemplate the potential consequences of the agreements they are signing, or may agree to a disposition option in order to appease their spouse. The following section will consider each of these concerns in turn.

Free and Informed Consent

Change of Heart

Empirical research demonstrates that many patients change their minds regarding what should happen to their extra embryos following IVF and especially after successfully giving birth to a child through these methods. A number of studies have shown that while a substantial number of individuals or couples indicated initially – pre-IVF treatment – that they would be interested in donating their surplus embryos for third-party reproduction or research, the vast majority did not follow through when asked again to make a decision following treatment. For instance, in one American study 71% of couples changed their preference regarding disposition between the time the embryos were created and when they were asked to make a final decision. A Canadian study demonstrates that while most patients preferred to donate their embryos to research prior to undergoing IVF, and indicated this preference on their consent forms, many had a change of heart after completing IVF and decided to discard them.

Some scholars have hypothesized that this change of heart may be linked to individuals’ changing perceptions of their embryos. Qualitative and quantitative research on IVF and embryo donation suggests that patients’ perceptions of their frozen embryos often shifts over time and is particularly liable to change following IVF treatment. These studies reveal that many women who successfully conceived using IVF began to see their embryos as their potential children. For instance, one study recounted that of 75 women interviewed who had undergone IVF, 90% viewed their embryos as potential persons and as potential brothers or sisters to their own children. Other research explains that couples with in vitro embryos began to describe them as their “virtual children.”

Once individuals successfully conceived through IVF, many expressed reluctance to donate what they perceived as their biological offspring or “children.” Some drew an analogy to adoption, and explained that they could not bear the thought of giving away their genetic kin. For instance, one woman who changed her mind explained: “And I felt good about that whole thing until the time came when I had to make that decision and I found that [began weeping] … I couldn’t donate them. I never thought about that [someone else having my child] really.” Several respondents in other studies explained that they could not conceive of their genetic offspring living elsewhere and being raised by other parents. As one pointed out: “I feel guilty that I have five embryos in storage and that I am unwilling to donate them. But I see the embryos as my children, and them being raised by someone else would be something I would never get over. I see it as like adopting out one of my twins.” Another explained: “Having my child living somewhere else is not acceptable. It’s not like I’m donating an egg. I’ve thought of this as well. It’s not like my egg or P’s sperm. It’s our child.”

As a result of these findings, researchers have questioned whether individuals who are planning to use IVF in attempt to build their families are in a position to make informed decisions prior to undergoing treatment, and whether such agreements ought to be legally binding. This research, like all empirical studies, has some methodological limitations and may not reflect the experiences of all individuals who undergo IVF. However, this change in decision-making following IVF treatment has been identified in studies across different jurisdictions and, importantly for the purposes of this article, this trend has been studied and identified in Canada as well.

Counselling and Legal Advice

Canadians also may not be currently receiving adequate information about the potential consequences of the consent forms or agreements they are signing. Under the AHR Consent Regulations, donors must be informed in writing about how their embryos will be used, and the manner and period of time in which they may withdraw their consent. In turn, Quebec’s Regulation Respecting Assisted Procreation specifies that a physician or health professional must inform IVF patients about the possibility that the number of embryos produced will exceed their reproductive needs and the need to plan, along with their spouse, as to how they should be disposed of. However, it is unclear how much time clinics or hospitals take to explain their consent forms to patients, and also whether patients are being provided with sufficient information about these consent forms’ potential legal implications.

Counselling and legal advice for individuals who create or donate embryos is not legally required, despite being highly encouraged or required by some clinics, and will increase the substantial costs already associated with IVF. Prior provisions of the AHRA had required that counselling services be made available to individuals donating reproductive materials or in vitro embryos and that licensees ensure that donors receive these services. However, in the Supreme Court of Canada’s 2010 decision in Reference Re Assisted Human Reproduction Act the Court struck down these provisions, having found that they were ultra vires federal jurisdiction. Quebec’s Regulation Respecting Assisted Procreation currently states that physicians must inform patients about “the availability of psychological support at the centre.” However, in many cases patients will need to pay to receive this counselling, which might discourage them from receiving needed support.

While clinics may purport to provide patients with information about their legal rights and obligations with regard to any surplus embryos, this information may be inadequate. For instance, an Ottawa fertility clinic’s information pamphlet indicates that the woman for whom the embryos were created and any partner must “provide for disposition of any embryos that are not used for the purpose of attempting to initiate a pregnancy, in case of any subsequent change to [their] health or marital status” and explains that donors have the right to modify this choice at any point in the future by withdrawing their consent in writing. However, this pamphlet does not clarify that spouses would need to jointly decide to change their decision. Thus, for instance, a woman who indicates on the consent form that the embryos may be donated to a third-party in the event that she and her spouse separate may not, in fact, ever have the ability to change her mind, should her spouse refuse to modify his consent. This clinic also explains that “legal principles and requirements around embryo freezing have not been firmly established” and that it is the “couple’s responsibility to seek legal advice where legal ownership [of the embryos] may be in question.”

Pressure to Begin Treatment

Women who are eager to start the IVF process may also not be in a position to fully contemplate the outcomes of signing these agreements. Usually IVF represents a last attempt for opposite-sex couples to have a genetic child. They turn to IVF after they have already unsuccessfully attempted to conceive through intercourse for over a year and often after they have already tried other less invasive methods of assisted procreation, such as artificial insemination. In addition, because a woman’s chances of conceiving continue to decrease as she ages, women may feel pressure to undergo IVF as quickly as possible, and may not be willing or feel able to take the time to consider the implications of an embryo disposition agreement.

The case of Roman v. Roman demonstrates this potential issue. The Court of Appeals of Texas upheld a clinic consent form that allowed for a couple’s embryos to be destroyed in the event of a disagreement. Mrs. Roman wished to use them for reproduction, and had not yet had a chance to undergo a first round of IVF, as her husband withdrew his consent following the extraction and fertilization of her eggs, on the night prior to her scheduled implantation. Mrs. Roman testified that while she signed the agreement, “she would have signed anything to move forward because her goal was to have a child” and that she and her ex-husband never discussed the prospect of divorce or what would happen to their embryos in the event they should disagree.

Donors might also understand the legal implications of these consent forms but give in to their spouse or partner’s requests or demands simply because they wish to begin the IVF process. For instance, the decision of the British Columbia Supreme Court in K.D. v. N.D. demonstrates that one spouse may decide to sign an embryo disposition agreement that does not reflect his or her wishes. In this case, a couple signed an agreement prior to undergoing IVF that clarified that in the event they should disagree or divorce, “custody” over the embryos would be decided in court. While their clinic’s standard consent form would have given Mrs. K.D. control over the embryos, Mr. N.D. had revised the agreement without consulting her and then asked for her signature. She complied, even though she claimed that she was unhappy about the modification. Their marriage deteriorated, and at the time of divorce she initially sought an order that she be given control over the embryos. However, by the time of the divorce trial the parties had agreed that the embryos would be destroyed. Thus the Court was not asked to determine the validity of their prior agreement, but rather simply granted the order that Mr. N.D. requested: that the embryos “be destroyed in a manner acceptable to K.D.” and that she be required to provide proof that the embryos have been destroyed. The Judge did not inquire into the circumstances under which Mrs. K.D. signed the original agreement, or question what caused her to change her mind and give in to her ex-husband’s request to have the embryos destroyed.

The experiences of individuals and couples who undergo in vitro fertilization combined with the potential lack of counselling and legal advice for couples making embryo disposition decisions, thus raises questions about whether contracts signed prior to a woman undergoing IVF should be given legal weight. If donors were unable to contemplate the effects of these agreements or how they might later feel about their decision, then they were not in a position to make enlightened, informed choices regarding embryo disposition. It is also not clear to what extent these consent forms or agreements reflect the autonomous wishes of spouses. Given that spouses need to decide, from the outset, as to how embryos should be disposed of at a later date, if they disagree at the time of the contract’s creation one spouse is likely to bend to the wishes of the other in order to proceed with treatment. In light of these circumstances, enforcing agreements may run directly counter to the intentions of the AHRA and Quebec’s Regulation Respecting Assisted Procreation to ensure that embryos are only used or donated in circumstances where donors have provided free and informed consent.

Legally Enforceable Agreements

Canadian law and public policy resists applying a traditional contract model to a variety of family law agreements, in part because of concerns about whether parties are in a position, at the time of these agreements’ creation, to provide free and informed consent. For instance, while Canadian courts have emphasized the importance of upholding domestic contracts between spouses, these agreements may be potentially set-aside in circumstances where an arm’s length commercial contract would not be subject to judicial interference.

Canadian legislation and jurisprudence also demonstrates that surrogacy contracts are not to be treated the same as commercial agreements. For instance, Quebec, Alberta and British Columbia’s family law legislation makes clear that these agreements are not legally enforceable and do not constitute valid consent to relinquish a child. In order for intending parents to acquire parental rights to the exclusion of a surrogate mother, a surrogate must consent to give up the child, and her parental rights, following the child’s birth. Prior jurisprudence also suggests that Canadian courts would be unwilling to force a surrogate to give up a child against her wishes, even in those provinces that do not have explicit legislative provisions declaring that that surrogacy contracts are unenforceable. Canadian courts have not yet needed to contend with a custodial contest between a surrogate and intending parents as the only Canadian surrogacy dispute was never reported as going to trial. However, in cases where surrogates and intending parents agreed that the intending parents would have sole custody, Canadian judges have nonetheless noted that they were able to transfer parental rights to intending parents in part because the surrogate consented, following the birth, to not be considered the child’s legal parent.

Canadian adoption law statutes also do not permit women to provide binding consent to an adoption prior to giving birth and also provide birth parents with a period of time in which they may revoke their consent. Provincial statutes across Canada make very clear that consent to adoption is only valid if it is given in writing, following the birth of the child, and often following a specific number of days stipulated in each province’s adoption legislation. For example, British Columbia’s Adoption Act clarifies that a birth mother’s consent will only be valid if it is given at least ten days after the child’s birth, whereas in Ontario birth parents’ consent may only be given once the child is seven days old. A birth mother is also given the opportunity to revoke her consent up to a certain point after the child’s birth. For instance, in British Columbia and Quebec the period of time for revocation is 30 days after consent was given. In Ontario it is 21 days. If consent is withdrawn during the revocation period, then the child must be returned; however, if the period of time has elapsed, then the child is to remain with his adoptive family, subject to some exceptions. Any agreements, verbal or written, that were created prior to these statutory time periods are not legally binding.

In each of these contexts, the law recognizes that agreements between spouses or between a pregnant woman and third parties ought not to be treated the same as other contracts, because of the nature of these agreements and the circumstances in which they were created. The lower threshold for judicial intervention in the context of domestic agreements, as compared to commercial contracts, reflects the law’s recognition that these agreements may be negotiated in emotional circumstances and may reflect power imbalances between spouses or partners. In the context of adoption and surrogacy, Canadian laws recognize that a surrogate or a birth mother may change her mind and wish to keep the child she has carried following pregnancy and childbirth, and that where a woman does give up a child, it should be in circumstances where she has been given the time to reflect upon this decision and is given the opportunity to make an informed and autonomous decision. Laws relating to adoption and surrogate motherhood also arguably reflect a desire under Canadian public policy to protect women’s reproductive autonomy and to prevent the commercialization of reproduction. They seek to preclude third parties from making decisions that will determine whether a woman may raise the child she has carried and to prevent children from being treated as commodities than can be exchanged on the market. These laws also demonstrate an intention to ensure that a child’s interests are given priority; Canadian courts consider the best interest of the child in determining who ought to be a child’s legal parents, regardless of any existing agreements.

These agreements are not entirely analogous to embryo disposition agreements. Unlike marriage, cohabitation or separation agreements, embryo disposition contracts or consent forms do not deal with financial obligations, the distribution of property or custody and access with regard to children. Canadian law makes clear that embryos are not “persons” and thus are not children, and it would be inconsistent with the Assisted Human Reproduction Act, which prohibits the commercialization of reproductive material, to treat embryos the same as other property that may be negotiated for, contracted over and bought and sold. Domestic agreements also do not seek to make decisions that may ultimately determine whether one party may be able to reproduce and raise a child. In turn, unlike a surrogate or birth mother, a woman who donates or destroys her embryos in accordance with a clinic consent form or spousal agreement does not give up a child she has carried and birthed.

However, embryo disposition agreements nonetheless raise similar issues as domestic contracts, surrogacy contracts, and adoption agreements. Agreements or consent forms setting out spouses’ intentions regarding their embryos may also be signed in emotional circumstances, and may not reflect both parties’ wishes. Embryo donors, much like surrogates or birth mothers, may change their minds regarding whether they would like to donate their embryos – and thus give up an opportunity to have and raise a child – after they experience pregnancy and childbirth. In turn, embryo disposition agreements, much like surrogacy contracts or adoption agreements, seek to restrict or control a woman’s ability to reproduce or her choice to carry and/or raise her genetic children, and thus are arguably problematic on grounds of public policy.

This article contends that given these similarities, embryo disposition agreements ought not to be treated the same as binding contracts and should be legally unenforceable. The threshold for judicial interference in relation to domestic contracts seems too high for embryo disposition agreements given that they involve decisions regarding women’s reproduction. Moreover, much like surrogacy contracts or pre-birth agreements to relinquish a child for adoption, these contracts may be executed at a time when women do not have sufficient information in order to make free and informed decisions regarding the disposition of their embryos.