Vanessa Gruben and Angela Cameron foresee many more difficult legal questions arising from dispositional disputes over reproductive materials.

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Disputes over the disposition of human eggs, sperm and embryos pose a unique challenge to existing legal rules and frameworks in Canada.

Whether the dispute is over the future reproductive use of gametes (sperm and eggs) or embryos, donation for research or training, or destruction, these disputes force us to consider the legal status of gametes and embryos. Such disputes also raise questions regarding the legal rights and responsibilities of those from whose bodies the cells originate, those who create embryos, and those who commission, and store these materials.

Dispositional disputes may arise from many different circumstances: when intimate relationships end; when individuals complete their family building project; and upon death. They often involve many different stakeholders including parents, would-be parents, gamete and embryo donors, researchers and fertility clinics. From a legal perspective, dispositional disputes involve a complex interplay between family law, property law and Canada’s Assisted Human Reproduction Act (AHR Act). The AHR Act specifically requires various forms of written consent prior to a variety of uses of gametes and embryos.  A recent family law case from British Columbia, J.C.M. v A.N.A., (here) illustrates some of the complexities involved in resolving these types of disputes, and highlights a key difference in the way the law treats gametes and embryos.

The case involved a lesbian couple, J.C.M. and A.N.A., who disagreed about the disposition of thirteen frozen sperm straws which they had purchased together and used to give birth to their two children. During their relationship, each woman conceived a child using the sperm from the same donor.  When they separated, the women signed a separation agreement which divided their assets equally between them and which provided for custody and support of both children. The women disagreed on the disposition of the remaining sperm straws that were stored at the fertility clinic. J.C.M. wished to give the sperm to her new partner, T.L., to conceive a child who would be biologically related to the children from her relationship with A.N.A. She argued that the sperm was property and, like their other marital property, should be divided in accordance with their separation agreement. A.N.A. did not want J.C.M. and T.L. to use the sperm to conceive. She argued that the sperm straws should be destroyed. To resolve the dispute, the court wrestled with whether the sperm straws fit the legal definition of “property”; whether A.N.A.’s right to procreate (or not) would be violated if T.L. conceived a child with the sperm; and whether the best interests of the existing and any future children were a relevant consideration in determining the proper disposition of the sperm.

Ultimately, the court concluded that the sperm straws were “property” and ordered them to be divided between the two women in accordance with the separation agreement. The parties did not appeal the Court’s decision. In reaching its decision, the court found that the right to procreate was not engaged because A.N.A. would not be the biological or legal parent of any child conceived by T.L. from the sperm. The court refused to address the best interests of the existing or any future children.

The court did not address the statutory requirements of the AHR Act which requires written consent prior to the use of sperm, ova or embryos, presumably because the relevant provisions had already been complied with. In this case, the only consent required was that of the anonymous sperm donor and he had given his consent for the sperm to be used generally for reproductive or research purposes. On the other hand, if A.N.A. and T.L. had used the sperm to create and store embryos for their future reproductive use, a more complex set of rules would have come into play as the women would have shared decision-making power regarding the future reproductive use of the embryos.  Because the rules require the consent of both parties prior to the use of the embryos, a property law analysis is likely unnecessary in the family law context. Whether or not embryos can be owned and by whom is not a relevant consideration because the consent rules govern their disposition.

This case addresses just a few of the difficult legal questions that arise from dispositional disputes and provokes many others. Should the traditional rule at common law against the ownership and commodification of the human body apply to gametes and embryos or is a departure justified in certain contexts as it was in this case? Should the court’s finding that sperm are to be divided according to the rules governing marital property, apply to eggs and/or embryos? In cases involving embryos should a biogenetic tie to the embryo give one party a veto? If gametes and/or embryos are “property” in the family law context, what does this mean for other areas of law, such as estate law, trust law and tort law? If the law treats gametes and/or embryos as “property”, what does this mean for other body parts, such as blood and organs?  These questions will become increasingly important as more and more Canadians use reproductive technologies to create their families and as more and more reproductive and biological materials are used for scientific research.

Vanessa Gruben and Angela Cameron are Associate Professors in the Faculty of Law, University of Ottawa, Canada.