Is a human embryo subject to contract law?

Court rules that embryo is property
Court rules that embryo is property

In a unique case, an Ontario judge recently ruled that a human embryo — defined at as “the young of a viviparous animal, especially of a mammal, in the early stages of development within the womb, in humans up to the end of the second month” — can be considered a part of a family breakup and can be awarded to one or the other person.

“(In) his view, the intentions were very clear, so that when it comes to the use of, in this case, a family asset — because he held that the embryo was property and is jointly owned when it comes to the use of the embryo — then simple contract law should prevail,” said Sudbury lawyer Dale Brawn, who spoke with Canadian Lawyer after the July 25 ruling.

In the case, the main difference from other custody cases was because the embryo was purchased from a U.S.-based company and created from donated sperm and eggs: neither couple had a biological connection to it. The woman wanted control of the embryo so she could attempt to have a child.

The judge ordered the woman, identified as “D.H.” to pay her husband US$1,438 as compensation for gaining control of the embryo.  

“It is also clear that the embryo is property,” wrote Ontario Superior Court Judge Robert Del Frate.

But is it right to treat a potential future human being as property?

No, according to a doctoral candidate at McGill University’s Faculty of Law, who wrote in The Globe and Mail that this “troubling precedent” might presage some ugly future divorce proceedings.

“Adopting a property approach also means that embryos could be used as a bargaining chip in acrimonious divorces. A spouse that wishes to use an embryo to conceive may regard it as invaluable and their partner might exploit their desire to have more children to gain more property in a divorce,” wrote Stefanie Carsley.

As a form of protection, Lisa Feldstein Law Office advises clients to enter into an embryo disposition agreement to minimize potential future arguments.

“While it may seem unusual to enter into a contract with one’s spouse or romantic partner, it is a risk management tool to protect future interests and ensure decisions are made with the appropriate advice and consideration this difficult decision deserves – outside the information overload at the clinic,” according to a blog post on the firm’s web site.

However, south of the border a couple who lost three viable embryos after a storage tank in an Ohio hospital malfunctioned, most likely due to human error, asked a judge to declare the embryo a person and not “chattel.”

The couple “viewed the embryos as patients of (the facility), and should have been treated as such,” according to an appeal brief, written by lawyer Bruce Taubman, and filed with the Ohio Eighth District Court of Appeals.

“The parents may believe that the embryos they created are already persons, but that is a matter of faith or of their personal beliefs, not of science and not of law,” ruled Cuyahoga County Judge Stuart Friedman, who dismissed the original case on May 18.



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