Friday, May 17, 2013
Lab technician at work

What are the promises and perils of applying adoption laws and practices to embryo donation?

By Mark Witten

After completing IVF (in vitro fertilization) treatment, couples face the dilemma of what to do with the leftover frozen embryos. One option is to donate the unused embryos to another woman or couple for their reproductive use. Embryo donations have often been compared to adoptions because the children born through donations don’t have a genetic connection to their social parents. Some adoption agencies and fertility programs in Canada and the U.S. are now offering services that allow the donors to select the embryo recipients and require the embryo recipients to undergo a home study to assess their suitability as “adoptive” parents.

In a thought-provoking presentation at the 11th Annual Graduate Colloquium, hosted by the CIHR Training Program in Health Law, Ethics and Policy in the Faculty of Law's Rowell Room on May 9-10, 2013 , Stefanie Carsley questioned the comparison between embryo donation and adoption—and looked at the potential consequences of applying adoption laws to embryo donations.

Carsley, a U of T Faculty of Law LLM candidate, said there are major differences in how embryo donation and adoption are treated under the law, and argued that most of the existing legal differences are justified. She gave the example of laws relating to consent and revocation to show the perils of applying adoption law to embryo donation.

Under Ontario’s adoption laws, for instance, the birth parents can only give consent to the adoption seven days after birth and they have 21 days to revoke their consent. The timing of revocation is critical. What would it mean for the gestational mother if the embryo donors were legally allowed to change their minds during her pregnancy, or after birth, using the adoption model?

“This would have problematic implications for women’s reproductive autonomy. It would be completely at odds with Canadian law and public policy to allow the donors to revoke their consent after embryo implantation, and thus to potentially demand that the embryo recipient terminate her pregnancy, or relinquish the child to them following birth,” said Carsley, a CIHR Health Law, Ethics and Policy Fellow who is focusing on legal issues related to embryo donation for third-party reproduction in her thesis.

In 2011, Carsley received the J.S.D. Tory Writing Award for her papers, “Funding In Vitro Fertilization: Exploring the Health and Justice Implications of Quebec’s Policy,” published in Health Law Review, and “Tort’s Response to Surrogate Motherhood: Providing Surrogates With a Remedy for Breached Agreements,” published in The University of British Columbia Law Review.

While a substantial number of prospective embryo donors indicated before undergoing IVF that they would donate surplus embryos to a third party, the vast majority changed their minds after they had their own children.

While she is opposed to applying adoption laws to embryo donation, Carsley argued that comparisons to adoption offer the promise of potential solutions to improve or fill gaps in embryo donation laws and practices.

The lessons that can be learned from these comparisons are timely and relevant because most provinces are poised to institute further regulations in relation to Assisted Reproductive Technologies—except Quebec, which has instituted its own regulations. (In 2010, the Supreme Court of Canada struck down much of the Assisted Human Reproduction Act as ultra vires federal jurisdiction.) Also, Canadian courts are faced with disputes between spouses over the disposition of gametes and embryos, as well as conflicts over parentage and openness/information issues.

Consider, for example, that provincial adoption laws give the birth parents a specific period of time—21 days in Ontario and 30 in B.C.—in which to revoke their consent. The revocation period in embryo donation happens before the recipients acknowledge in writing that the embryos have been designated for their reproductive use, but the law doesn’t specify how long that period of time should be.

“I worry that because donated embryos are such a scarce resource there is the potential that the window of time for revocation would be quite short and that this period of time might not be adequate to enable donors to withdraw their consent,” said Carsley, who recommended that provincial regulations define a specific period of time in which donors can revoke their consent to ensure that they are truly providing free and informed consent to donate.

A second example involves the effects of joint consent and revocation.

It is common practice for fertility clinics in Canada to ask couples who intend to undergo IVF to sign consent forms—prior to treatment—indicating that they consent to IVF, asking whether they would like remaining embryos to be frozen, and asking what should happen to any surplus frozen embryos in the event of disagreement between the spouses, divorce or death. Quebec’s regulations require that couples express their intentions in writing regarding their surplus embryos.

Now suppose the couple stipulates in writing that their embryos will be donated to a third party if they disagree and then they do disagree. This can have the effect that a woman provides consent to donate the embryos before undergoing IVF and before giving birth.

Compare this with adoption, where the birth mother cannot consent to the adoption before giving birth. Carsley maintained that, like a birth mother, a woman may not be able to make a truly informed decision about relinquishing embryos for donation before undergoing IVF or giving birth.

The problem is further underscored by empirical research on embryo donation, which shows that many women who undergo IVF, and especially those women who successfully conceived, start to see their embryos differently than they did before. “Many accord more value to their embryos or start to see them as potential siblings for their children. While a substantial number of prospective embryo donors indicated before undergoing IVF that they would donate surplus embryos to a third party, the vast majority changed their minds after they had their own children,” said Carsley.

Another problem is the consequence of joint consent after a couple disagrees or divorces. One spouse can deny the other spouse the ability to use the surplus embryos for reproductive use.

Carsley gave the hypothetical example of Anna and Ben. If their marital relationship deteriorates, and Anna wants to use the embryos to have children and Ben disagrees, then the embryos might be donated to a third party because they had already expressed this intention for embryo usage upon disagreement.

There is a case in British Columbia that is set to go to trial in June with a similar scenario. A husband and wife are divorcing and they have surplus embryos in storage. She wants to use the embryos for her own reproductive use and he wants them destroyed. The court issued an injunction preventing destruction of the embryos until the case can be heard.

Carsley argued allowing Ben to prevent Anna from using the embryos goes against the principles of the Assisted Human Reproduction Act and Quebec’s An Act Respecting Clinical and Research Activities Relating to Assisted Procreation, both of which indicate that women are affected by assisted reproductive technologies (ARTs) more than men, and that this legislation is designed to protect the health of women undergoing treatment. Allowing Ben to block Anna from using the embryos also doesn’t recognize that she had to undergo invasive and risky treatment to harvest her eggs.

Although it could be argued Ben should not be forced to reproduce and become a father against his will, Carsley suggested a solution would be to consider him a donor under the law. She recommended clarifying Canadian laws regarding the rights and responsibilities of donors, so a donor isn’t considered to be a parent simply by virtue of his or her donation.

Applying adoption laws to embryo donation would be inappropriate and misguided, Carsley concluded, but there are important lessons that can be learned from the adoption context to protect the health of women undergoing IVF and improve the regulation of embryo donation in Canada.