Family Law

Embryo Cases Just Got More Confusing -- And Custody Arrangements Way More Awkward

Plus, this is the first time there's been a decision that says when there is no genetic connection, embryos are to be treated as property.

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Because of the miracle of advancing reproductive technology, and the growing use of in vitro fertilization (IVF) — the common practice where eggs and sperm are combined in a laboratory to form human embryos — there are currently millions of cryopreserved embryos stored at fertility clinics throughout the world. These little embryos hold the promise of very wanted children, but they are also the subject of ever increasing litigation. When couples split, and no one can agree on the disposition of the stored embryos, courts are left to settle the argument over who can control the remaining embryos, and what their future will hold.

Two weeks ago, a judge in Ontario, Canada, made an interesting ruling on this classic scenario.  But the case came with a twist.

The usual case is the one where one ex is protesting the use of his or her genetic material against his or her wishes. Because the embryos in these cases contain the genetic material of both individuals, courts are often confronted with property and contract law questions. One case in my state of Colorado is the hotly awaited Colorado Supreme Court’s Rooks case.

But in the Ontario case, neither of the exes was in fact genetically related to the embryo they were fighting over! That’s because the couple had recruited a sperm donor, and a separate egg donor, to form the embryo at issue. So donated eggs, sperm, and embryos brings a whole new dimension to regular embryo disputes. In this case, the couple had paid for donated eggs and sperm from the United States. The donated genetic material was combined to originally form four embryos. Two of those were non-viable. One was implanted, and eventually became the couple’s real life, non-embryo son. And the fourth and last remaining embryo was the subject of the lawsuit.

The ex-husband objected to his wife using the last embryo to have another child, even though the child wouldn’t technically be related to him. He argued against being forced to pay child support for another child, and that the marital funds had paid for the embryos, and therefore they were his. He also argued that she was not fit to conceive and parent another child due to her poor job history, and an additional child wouldn’t be in their son’s best interest. Ouch!

Be Careful What You Sign

In response, the ex-wife argued that the ex-husband wouldn’t owe her any child support, and that he couldn’t object to her use of the embryo to have a child that wouldn’t be related to him. The ex-wife also argued that equity favored the party wanting to use the embryo, and that it was in their son’s best interest to have a biologically related sibling. But these were not the argument that won the day for her.

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In ruling in favor of the wife receiving the remaining embryo, including the right to use it to conceive another child, the judge relied on a consent form signed by both parties with an unfortunately named Canadian fertility clinic, the ISIS Regional Fertility Centre. (Hopefully there’s no risk of confusion between this fertility clinic and one that the terrorist group would run.) The consent form noted in case of divorce the “[a]gent shall respect the patient’s wishes.” The patient, in this instance, was the wife.  Mic drop!

Property or People?  

The court did address the ages-old (okay, decades-old) question, “What are embryos?” Are they property? Are they people? Are they something in between? In the U.S., most courts like to make up an intermediary category when answering the question, dubbing embryos as “quasi-property,” or property with qualifications of specialness. After all, even if you don’t think embryos are persons, they have the potential to be.

The Ontario court answered that embryos are purely property. The judge even went so far as to place an exact value on the embryo and require the wife to reimburse husband half the cost spent creating it. “The parties paid $11,500 USD to create four jointly owned embryos. Each embryo is therefore worth $2,875 USD. The applicant’s interest in half of the remaining embryo therefore entitles him to an award in the amount of $1,438 USD.” You have to respect the simplicity with which the Ontario judge cut through all of the complicated legal issues we face in America.

Sara Cohen, a Toronto-based assisted reproductive technology specialized attorney, confirmed the shocking value of this determination. “This is the first time there is a clear decision in Canada that comes right out and says when there is no genetic connection, embryos are to be treated as property.” While everyone may not agree with this approach, talk about the value of predictability in litigation. Placing strict dollar values on genetic material certainly helps courts rely on property law principles, however shocking it may be.

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What About That Law Saying the Sale of Gametes and Embryos Is Illegal?

Perplexingly, the court fully acknowledged the current law in Canada outlawing the sale of human eggs, sperm, and embryos. The judge determined that in spite of such law, it is “clear that the embryo is property. If the property is to be divided in that fashion, then surely [the husband] is to be reimbursed for the cost of purchasing those gametes.” So it’s true that you can’t sell your embryos on the market. But a court might be able to force you to pay your ex the cost of creating the embryos, if you are able to use them against their wishes.

Awkward Custody Arrangements

Of course, these cases can always cause confusing results for the actual children involved. If the ex-wife is successful in having the second child, she will have two kids, and they will genetically be full siblings. But only one will be going to visit dad. The other will technically be without a second legal parent. So that’s confusing, and certainly awkward. But the alternative, of course, is that that child never exists, and never shares in the love of having a family with his mother and sibling. So I’ll take that result, awkwardness and all.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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