Vancouver Calgary Frozen Embryo Dispute Lawyers at MacLean Law are always looking for ways to advance this rapidly developing area of law. What happens when frozen embryos are created by two heterosexual or same sex parents and one dies or they separate or divorce? The rights of one parent to use them frozen embryo to create a child must then balanced against the rights of the other parent to not have a child born after a relationship ended. How are these rights and child support obligations to be balanced? Our fertility law department is here to guide people through initial contracts regarding the use of human reproductive materials all the way through to providing legal advice and representation in court on frozen embryo disputes.
Vancouver Calgary Frozen Embryo Dispute Lawyers 1-877-602-9900
A recent high profile case involving TV star Sofia Vergara has put a high profile focus on these disputes.
Vancouver Calgary Frozen Embryo Dispute Lawyers Explain Consent Required
Canada’s AHRA has Consent to Use clauses as follows:
Under section 8 of the AHR Act, donors of human reproductive material and in vitro embryos must provide their written consent before their material can be used to create an embryo(s) or to use their in vitro embryo(s) for any purpose. No person shall:
- Make use of human reproductive material to create an embryo unless the donor of the material has given written consent on its use for that purpose, as required under the law;
- Remove human reproductive material from a donor’s body after the donor’s death in order to create an embryo unless the donor of the material gave written consent for its removal for that purpose, as required under the law;
- Make use of an in vitro embryo for any purpose unless the donor has given written consent on its use for that purpose, as required under the law.
Vancouver Calgary Frozen Embryo Dispute Lawyers Like New Expert Recommendations Except One
Brown University published a recent article where two legal experts suggested the following principle be applied to reduce disputes or at least guide courts in resolving them. Here’s what they recommend:
- Don’t blend contracts into other forms: When clinics have combined informed consent language together with the text meant to direct the disposition of embryos, they have created confusion. Clear, standardized contract language regarding what to do with the embryos should be presented separately.
- Require a contract: Clinics shouldn’t freeze any embryos for later possible use without the parties fully executing a binding legal agreement.
- The original agreement stands: What the parties agree to at the time they sign the contract should serve as the rules from then on. If one party unilaterally changes his or her mind later, for instance because of divorce, that shouldn’t matter.
- ‘Legal parenting’ not compulsory: As soon as the embryo exists, the man and woman are “genetic” parents, but if one party later uses an embryo against the other’s desires, that non-consenting person should not have to be the resulting child’s legal parent.
- Anticipate tragedy: No one expects to suddenly lose fertility — because of injury or disease, for instance — but the parties should plan for the possibility. Contract language that anticipates circumstances in which one party may want to use an embryo can ensure both parties pre-agree on what to do.
- Individuals who cryopreserve embryos face an uncertain and shifting terrain of varying state laws, with varying degrees of respect for contract, and case law that might generate different outcomes depending on changes in the underlying fact pattern,” Cohen and Adashi wrote in their conclusion. “A uniform approach throughout the country seems desirable.
Frozen Embryo Dispute Lawyers MacLean Wants Charter Challenge to AHRA
Lorne N. MacLean, QC says the Canadian mutual consent clauses are flawed because section 8 and its regulations leave no option for judicial intervention in difficult cases where one spouse has died or spouses separate and one spouse may only be able to give birth through the use of the frozen embryos. The Charter protects fundamental personal rights including human procreation and reproductive rights and MacLean believes section 8 will not survive a Charter challenge.
Changes may be coming to the Assisted Human Reproduction Act says a recent Globe and Mail article.
