Canadian Trial Court Embryo Decision Overturned

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

An Ontario Court of Appeal has reversed a controversial decision made by a trial court last summer that an ex-wife could use, over her ex-husband’s objection, an embryo they had made using donor egg and donor sperm. The lower court had scrutinized the couple’s documents, applied a contract analysis, and ordered the ex-wife to reimburse her former spouse for one-half of the costs of the donated gamete (Legally Speaking, August 2018). In contrast, the appellate court ruled the Canadian Assisted Human Reproduction Act applied, giving either “donor” an unwaivable right to withdraw consent to use. The court noted it was “unfortunate” that the parties had argued contract law applied and not brought the consent requirements to the lower court’s attention. The ex-wife also had argued on appeal that the end of the marriage ended her ex-husband’s right to object.

In its decision, the appellate court noted, “Parliament has imposed a consent-based, rather than a contract-based, model through legislation and regulation,” and therefore the court should not have applied contract or property law to the couple’s disputed claims. To that point, the appellate court noted, “the idea that donor consent can become frozen in time, rendered unsusceptible to changes of mind, belies the central importance placed upon consent in the statutory scheme.”

The couple had one embryo remaining after they had paid $11,500 for four “donor-donor” embryos in the U.S., which had resulted in two viable embryos, one of which had produced a son. The ex-wife had hoped to have a second child from the remaining embryo and had offered to relieve her ex-husband of any child support obligations for any resulting child. The ex-husband had conceded he signed contract documents that gave his wife control over the remaining embryo, but said he subsequently changed his mind. While the lower court was persuaded to follow the contract, the appellate court was not.

The appellate court in ruling that the Canadian Assisted Human Reproduction Act, not contract law, governed, found that its provisions considered each spouse a “donor”, regardless of genetic contribution, and gave each a right to withdraw consent prior to an embryo’s use, creating essentially a unilateral veto by either party. The appellate court also disagreed with the wife’s argument that the divorce changed the applicability of the spousal consent requirement, or that either “donor” had the ability to “contract away their rights to withdraw consent” under the applicable law.

Canada, unlike the U.S., has a national law governing many aspects of ART law, including the right to withdraw consent, so the appellate court’s reversal following that law should not be surprising. It is an interesting question why neither the parties nor the lower court considered that law in their respective arguments or decision. The Canadian Press, June 1, 2019.

Connecticut Frozen Embryo Dispute Appeal Argued

Another divorcing couple’s embryo dispute is awaiting a final state Supreme Court decision. The Connecticut case, Bilboa v. Goodwin, was argued in April 2019 in an appeal by the ex-husband after the embryos were awarded to his ex-wife to discard in accordance with their disposition agreement with their clinic. The question the court framed, and on which it invited “amicus” (friend of the court) briefs, was:

Did the trial court properly award the cryopreserved embryos to the plaintiff wife under a "balancing approach"; (Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)); after declining to apply a "contract approach" on the grounds that the parties' agreement with the reproductive services center was not an enforceable contract? Bilbao v. Goodwin, Superior Court, judicial district of Hartford, Docket No. FA-16-6071615-S (October 24, 2017, Nastri, J.

The facts of the case involve embryos frozen for seven years by a divorcing Manchester, Connecticut couple who alternatively argued that their frozen embryos were marital property or future human beings. Before starting the IVF process, the couple had signed an agreement that if they both died or divorced, the embryos would be destroyed. At the time of the divorce, they had one child from the IVF procedure, and the husband argued to the divorce court that he now objected to destroying the embryos and would rather they be donated.

The divorce court ruled in favor of the ex-wife, despite noting that the clinic’s written agreement was little more than a “check-the-box questionnaire.” Relying on the seminal Davis v Davis decision (TN 1992), the court noted the ex-husband had other means of achieving parenthood and that the ex-wife’s right to avoid procreation outweighed his desire to donate the embryos for procreation.

While the ex-husband reportedly represented himself at the divorce, he now has legal counsel, as well as the support of the Thomas More Society, both urging Connecticut to adopt the policy that embryos are life. The rhetoric and language are reminiscent of that in other such cases where the Thomas More Society has been involved, including the ex-husband’s attorney arguing, “Because we are dealing with the unique status of a frozen human embryo, which if implanted into another mother could survive, grow and be born a wanted child, should not our public policy err on the side of life and grant possession-custody to the parent that wants to give the frozen embryo a chance to live, rather than on the side of death?” Because none of these arguments were made at the trial court, the ex-wife’s attorney has argued they cannot be considered on appeal.

The arguments being advanced by the ex-husband and amici are similar to those raised by the Rooks case, which the U.S. Supreme Court recently declined to hear. The American Association of Pro-Life Obstetricians and Gynecologists, represented by the Thomas More Society, has filed an amicus brief on behalf of the ex-husband. There do not appear to be any amicus briefs filed in support of the ex-wife or supporting the right to make dispositional agreements in advance of undergoing IVF.
Bilboa v. Goodwin (Hartford; Docket No. FA-16-6071615-S (2017); appeal pending (CT S.Ct #20078); The Hartford Courant (4/26/19).

Lawsuit Filed Alleging Wrong Spouse’s Sperm Used by Fertility Clinic

As more cases continue to come to light in the media over accidental and intentional sperm mix-ups, a new lawsuit has been filed by a same-sex male couple against the New England Fertility Institute after learning that their daughter is not the genetic child of the spouse they had requested and expected.

The lawsuit filed by the Brooklyn couple in federal court in March 2019 alleges they intended to have a child with each of their sperm and a friend as the egg donor. Their first attempt was to be with “John Doe” not “Richard Roe” (the court granted leave to the plaintiffs to use pseudonyms); the second was to be with Roe’s sperm. The first attempt in 2015 was successful, and a daughter was born to the couple. Their subsequent efforts in 2018 were not successful. The couple sued after their daughter’s resemblance to Roe became more apparent and a paternity test confirmed the mistake.

According to published reports, the men’s complaint alleges that, “while the plaintiffs are overjoyed about having Jane Doe in their lives, this news was shocking and caused emotional distress to the plaintiffs and their families.” The couple is seeking damages for emotional distress.

Given the historical reluctance of most courts to award damages after the birth of a healthy child, and the mixed results in more recent cases involving children born after mixed-up gametes and embryos from outside their intended parents’ families, it will be interesting to follow the court’s treatment of this claim. Doe, v. New England Fertility Institute,, (E.D.N.Y.2019).

U.S. International Surrogacy Policies Called into Question as Discriminatory

As more cases surface of gay male couples whose children born abroad have been denied U.S. citizenship, Congress is getting involved. In June, Pride Month, close to 100 Democratic members of the Senate and House called on the State Department to stop a policy that considers these children “born out of wedlock” and uses that categorization to deny citizenship to a genetic child of a non-U.S. citizen spouse. In recent years, under the previous administration, a gestational connection had been interpreted as meeting the requirement of a blood or biological connection, so that most lesbian couples or couples who need an egg donor, but not a surrogate, have not been impacted.

Although the State Department has argued the policy applies equally to all intended parents, it is having a disproportionate impact on male same-sex couples, and the Department is currently defending two lawsuits that argue the policy discriminates against same-sex couples and their children by failing to recognize these couples’ legal marriages.

The State Department policy was first developed in the 1990s, arising out of interpretations of 1950s immigration law, including the terms “born” of their parents and “blood relationships.” Under the Obama administration, the interpretation of the rules was relaxed, including that a biological connection also could arise from gestation meaning the policy did not restrict citizenship for most lesbian couples. The current administration’s stricter reading however, essentially requiring the sperm and egg be married to each other, has left some children born to male same-sex couples with different nationalities without U.S. citizenship status.

One much publicized case involves a married Israeli-American same-sex couple whose twins were each born from one of their father’s sperm. Only the twin who was the biological child of the American father was granted U.S. citizenship, while his twin born from his Israeli father’s sperm was not. In May 2019, a federal judge awarded both twins citizenship, a ruling the State Department has appealed.

The lawmakers’ letter calls on the State Department to “make it clear that every U.S. married couple is entitled to the same rights under the U.S. Constitution, no matter whom they love,” and to drop both that specific appeal and its policy. Dvash-Banks v. Tillerson [Pompeo], Docket. #2:18-cv-00523 (CD Cal.2019); “Democrats Urge Pompeo to End Policy Used to Deny Citizenship to Children of Gay Couples,” NY Times (June 6, 2019).

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  



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