Genetic Material — a Legacy Worth Protecting

Genetic Material — a Legacy Worth Protecting

In vitro fertilization and cryo-preservation of eggs, sperm and excess embryos, has become a routine procedure in much of the world. Bermuda does not have a sperm bank or a storage facility for embryos. Nor does Bermuda have an IVF clinic. But there are many Bermudians who travel overseas for fertility treatment and, in their excitement over the possibility of parenthood, are likely to give little thought to the nature of their interest in their own genetic material. Likewise, eggs and sperm are frequently stored by men and women undergoing chemotherapy, who may suffer sterility as a consequence of treatment.

The level of regulation guiding fertility clinics varies from jurisdiction to jurisdiction. For example, in the United Kingdom, regulations underlying the Human Fertilisation and Embryology Act 1990 provide for the storage of sperm, eggs and embryos for a maximum period of ten years, in the absence of an updated consent. There are no uniform laws in the United States and in the absence of state regulation, contract law principles are applied. This means that what happens to genetic material will turn on the precise terms of the contract entered into between the donor/storer and the clinic. In most instances, though not all, the relevant fertility clinic will provide forms of instruction and consent to be signed by the donor/storer. In the absence of a clear and comprehensive agreement with the clinic, the donor/storer may be at the clinic’s mercy. This can have significant implications on the death, incapacity or divorce of the donor/storer.

Rules established by clinics to deal with the situation where no instructions have been given by the donor/storer, or where those instructions have lapsed, vary widely. In some instances the spouse of the donor/storer may be given access to the genetic material. In other instances, the genetic material is just left to be stored indefinitely, or to be destroyed, donated or used for scientific research. Some countries have laws restricting the right to destroy eggs and sperm (Germany, Norway, France). In most places, however, in the absence of clear instructions to the contrary, the clinic will reserve the right to dispose of the genetic material on notice of the death of the donor.

While this is a developing area of the law, and each case will be decided on its facts, disputes surrounding genetic material will be interpreted in the context of certain emerging principles.

Genetic material is property

The United Kingdom Court of Appeal in Yearwood and others v North Bristol NHS Trust held that: “…notwithstanding that the Human Fertilisation and Embryology Act 1990 restricted [the men’s] rights to use the sperm to a limited extent by confining all storage of the sperm and its use to licence-holders and providing for a maximum time limit upon the storage, the significance of such inroads into the normal consequences of ownership was much diminished by the Act’s preservation of the [men’s] absolute control, in a negative sense, over the use and continued storage of the sperm and their right to require its destruction at any time, which was a fundamental feature of ownership.”

The courts will uphold procreational autonomy

Another developing principal, highly relevant in cases of divorce, is that use of one’s genetic material without informed consent will be seen as a violation of personal rights and a person will not be forced to procreate against his or her will. Thus, in the Tennessee case of Davis v Davis, a wife could not insist on being implanted with her former husband’s sperm, thereby forcing him into fatherhood outside marriage. The court came to the view that it will be a matter of weighing the interests of the parties in all the circumstances of each case.

Contract law principals will be applied

Signed consent forms will be enforceable on basic contract law principals, but only where freely entered into by the donor/storer with informed consent. In the Massachusetts case of C.A.Z v B.Z., where execution of the clinic’s storage agreement was not found to have been the true intention of the relevant sperm donor, but more a matter of convenience for the clinic, the contract was disregarded on the basis that forced procreation is against public policy.

Intention of the parties is paramount

The emphasis on contract law principles highlights the fact that courts will be looking to discover the true intentions of the parties. In the recent UK decision of Elizabeth Warren v Care Fertility (Northampton) Limited and Other, where the deceased husband had not given permission for storage of his sperm beyond the ten year limit, Mrs Justice Hogg, held that the deceased’s wife had the right to decide to have a child using her late husband’s sperm. Looking at the facts of the case, there was no question but that it was the deceased’s intent that his wife should have the option of bearing his children without the imposition of a deadline, notwithstanding that relevant formalities had not been complied with.

What is clearly evident is that the contract entered into by the donor/storer and a fertility clinic will be persuasive, but not conclusive, evidence of the intent of the parties as between husband and wife, as well as between donor and clinic. A donor/storer can, and should, take extra care to plan for unforeseen eventualities by:

• including provisions in his or her will concerning genetic material;
• executing an advance directive to cover possible future incapacity to give instructions for the handling of genetic material;
• ensuring whatever paperwork is provided by the clinic in question is properly reviewed, executed and updated and where there is any uncertainty, legal advice sought; and
• considering a pre-nuptial or post-nuptial agreement that includes a provision concerning the use of genetic material.

Your genetic material has the potential to be your legacy and its future use deserves protection.