Embryo Disputes in Both U.S. and Canada

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.

New York Appellate Court Upholds Couple’s Embryo Disposition Choice, Permitting Withdrawal of Consent

IVF patients who signed an agreement with their fertility center in which they agreed that either spouse could withdraw consent to the use of their frozen embryos or gametes was upheld by an intermediate New York appellate court. The former couple had undertaken several unsuccessful IVF attempts at New Hope Fertility Center (NHF) and had one embryo remaining when they divorced. The wife sought to use the embryo as her last chance at biological parenthood, and in 2017 a trial level divorce court had awarded her the embryo for that purpose. The husband objected and appealed; this decision reverses the lower court and awards the embryo to the husband for the sole purpose of disposing of it.

A lower court and the referee it had appointed initially awarded the embryo to the wife, narrowly construing the document, and language in it regarding who would bear the costs of storage, and applied a balancing test, to suggest the wife had a right to use the embryo and the husband had no right to withdraw his consent. The appellate court analyzed the document’s language differently.

The appellate court noted that the couple had, “signed an agreement with NHF entitled, "Consent for the Cryopreservation of Human Embryo(s)" (the Consent Agreement). The court noted the Consent Agreement contained what it termed two dispositive paragraphs: 1) entitled, "Voluntary Participation," which provided that, "I/We may withdraw my/our consent and discontinue participation at any time . . ., and 2) entitled, "Authorization," which  provided that, "This consent will remain in effect until such time as I notify NHF in writing of my/our wish to revoke such consent."

The decision falls in line with the majority of appellate embryo disposition cases around the country where the parties’ unequivocal, written consent or agreement as to future disposition is respected.  While a small number of trial courts have been persuaded to override such prior expressions of intent in cases where “last chance” arguments for biological parentage have been made, such arguments seldom carry the same weight in an appellate court weighing the legal issues more dispassionately.

Finkelstein v Finkelstein, 2018 NY Slip Op 03926, 2018 N.Y. App. Div. LEXIS 3894, 2018 WL 2622105

Canadian Court Awards Wife “Donor-Donor” Embryo Under Contract Law

A divorcing Canadian couple’s dispute over an embryo they had created with purchased donor eggs and sperm from a U.S. facility has been resolved by an Ontario court applying contract law. According to media reports, the couple had purchased both donor eggs and donor sperm from a Georgia facility, created four embryos, two of which were viable, and had one son from one of those. Their divorce, around the time of their son’s birth, led to a dispute over what to do with the remaining embryo. The husband wanted it donated; the wife wanted to use it to attempt to have another child. The court ultimately ruled the remaining embryo was “property” and its disposition determined by the contracts the couple had signed with both the Georgia facility and their medical program. Finding that, “one cannot apply buyer’s remorse,” nor split a single embryo, it awarded the embryo to the wife, and awarded the husband half of the calculated cost of the donor sperm and egg that comprised the embryo.

The trial judge rejected a number of arguments each of the parties made as either too speculative or irrelevant, including, the wife’s desire for her son to have a biologically related family member; her offer not to seek child support; her suggesting the clinic form referred to her as “the patient” and that it would follow the “patient’s wishes” in the event of a divorce;  and the husband’s arguments that she could not afford to support their existing child, and that because he had paid for the gametes, they were his property.

The court found the couple had entered into contracts with the fertility clinic and donor program in which they considered the embryos jointly owned “property,” and that those choices should govern. While U.S. courts have often ruled in favor of a couple’s contractual agreements with a fertility clinic in the form of a dispositional agreement, the Canadian court’s analysis of the embryo simply as “property” and subject to division between the parties if possible, is highly unusual. It is unclear if the court would have ruled differently had either or both parties been a progenitor, with a genetic connection to the embryo. In the U.S., many courts have ruled that pre-implantation IVF embryos hold either a unique status or at a minimum are “special” or “joint” property that cannot be readily divided.

The court noted that, “…it would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to...”  The court also stated, “this court can only interpret the existing law…Therefore, unless legislative changes are made, this court must decide disputes such as this one based upon the agreements signed and the parties’ intentions…Accordingly, they must be divided as such, however, there is only one embryo…As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions.” The court then calculated the value of the embryo based on the couple’s total costs for the eggs and sperm, ($11,500), divided by the number of embryos created, and then awarded the husband the sum of $1,438 which it found was half the cost the couple paid for that embryo. The court also noted that buying sperm and eggs is not permitted by Canadian law, but that no one had raised that issue.

The case, given its unusual facts of both donor egg and sperm, and being a Canadian lower court ruling, may not set relevant precedent in the U.S., but at a minimum is a reminder of the varying status awarded embryos and the importance of dispositional agreements and the language contained in them.

Australia State Revocation of Anonymous Gamete Donation Receives Renewed Attention

The Australian state of Victoria enacted legislation unilaterally removing all donor anonymity at the request of a donor or donor conceived offspring, effective March 2017.  Recent media stories of adult donor conceived persons connecting with their sperm donors have brought the law back into the public’s eye.  The law, the Assisted Reproductive Treatment Amendment Act 2016, amends the Victorian Assisted Reproductive Treatment Act 2008.  The law is retroactive and applies to all donor conceived persons (including those born before the removal of anonymity in 1998). It recognizes a right to access available identifying donor information through a central registry under the control and supervision of the Victorian Assisted Reproductive Treatment Authority and establish contact with the donor unless a donor has filed an objection. It has recently resulted in connections and meetings between once anonymous sperm donors and their adult donor conceived offspring. The Act allows both donors and donor conceived persons to file “contact preferences” upon release of identifying information, and penalties apply to those who violate such preferences.


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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