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Friday, March 10, 2006

Ownership of "Frozen Embryos" -- Evans v. United Kingdom

The European Court of Human Rights recently issued an opinion in Evans v. United Kingdom, an interesting case involving ownership of so-called "frozen embryos" after a couple splits up.  After she developed pre-cancerous tumors of both ovaries, Evans and her partner (referred to as "J" in the opinion) had several fertilized ova created through in vitro fertilization.  Pursuant to England's Human Ferilisation and Embryology Act of 1990, both partners can withdraw consent to the use of the frozen embryos up to the point of implantation.  Evans and J split up and J withdrew his consent.  Evans argued that the frozen embryos represented her only chance to have biological children, but lost at every level, including the ECHR, because of England's legislative consent scheme.  The opinion is an interesting read in its entirety, but is particularly notable for this summary of how legislatures and courts in various jurisdictions have addressed the issue:

B.  The position in other countries

1.  The Member States of the Council of Europe

31.  On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998), the situation in the various Member States of the Council of Europe would appear to be as follows. In Denmark, France, Greece and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation; in the Netherlands, this rule is included in secondary legislation. In Belgium, Germany and Finland clinical practice appears to conform to this model, and it further appears that, as a matter of law or practice, in Iceland, Sweden and Turkey the male donor enjoys a similar power of veto to that afforded by the United Kingdom.

32.  A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in recognition of the fact that medically-assisted reproduction represents a far heavier burden for the woman than for the man, and absent any prior written agreement to the contrary, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria, Estonia and Italy the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman.

2. The United States of America

33.  The field of medically assisted reproduction is not regulated at federal level in the United States, and since few States have introduced laws concerning the subsequent withdrawal of consent by one party, it has been left to the courts to determine how the conflict between the parties should be resolved. There is, therefore, a series of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.

34.  In Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:

“...disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.”

35.  In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.

36.  In A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail.

37.  This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, the court subscribed to the view taken in the Z. case regarding public policy and ordered that the wife’s wishes be observed.

38.  In the final case in this series, Litowitz v. Litowitz, (48 P. 3d 261, 271), the Supreme Court of Washington decided in 2002 to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years.

4.  Israel

39.  In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.

The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him.

Ben Barros

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