2010 Peer Reviewed Transdisciplinary Publication: Specific Areas – Psychology – Bio-Ethics – Law

Published: US-China Law Review, David Publishing Company, Chicago Illinois, USA, June Issue, Volume 7, Number 6, Serial #67

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Ethical and Legal Dilemmas Surrounding Bio-banking

Ethical and Legal Dilemmas Surrounding Bio-banking

By

Natalie L. Montoya, David E. Montoya, & Christopher P. Montoya

Thompson Rivers University

1250 Western Avenue

Williams Lake, BC

V2G 1H7

Send Correspondence to:

Dr. Christopher Montoya

503 Centennial Dr.

Williams Lake, BC

V2G 4E5

Phone: 250-392-8132

Email: cmontoya@tru.ca

Introduction.. PAGEREF _Toc152954625 \h 2

What is Bio-Banking?. PAGEREF _Toc152954626 \h 2

What is Cryo-preservation?. PAGEREF _Toc152954627 \h 3

What is the Process of Cryo-preservation of Embryos?. PAGEREF _Toc152954628 \h 3

How are Cryo-preserved Embryos Used?. PAGEREF _Toc152954629 \h 4

Ethical and Legal Dilemmas.. PAGEREF _Toc152954630 \h 5

Introduction.. PAGEREF _Toc152954631 \h 5

Custody Battles in Divorce. PAGEREF _Toc152954632 \h 6

Cases and Legislation. PAGEREF _Toc152954633 \h 6

Discussion. PAGEREF _Toc152954634 \h 9

Subconclusion. PAGEREF _Toc152954635 \h 10

Embryonic Adoption.. PAGEREF _Toc152954636 \h 10

Abolishment of Parental Rights. PAGEREF _Toc152954637 \h 11

Further Ethical Issues in Embryonic Adoption. PAGEREF _Toc152954638 \h 12

Subconclusion. PAGEREF _Toc152954639 \h 15

Embryonic Research.. PAGEREF _Toc152954640 \h 15

Assisted Human Reproduction Act PAGEREF _Toc152954641 \h 16

Consent PAGEREF _Toc152954642 \h 16

Right of the ‘Human’ versus the ‘Embryo’ PAGEREF _Toc152954643 \h 17

Subconclusion. PAGEREF _Toc152954644 \h 19

Embryo Implantation Where a Terminal Incident has Occurred PAGEREF _Toc152954645 \h 20

Discussion.. PAGEREF _Toc152954646 \h 22

Foreseeable Problems. PAGEREF _Toc152954647 \h 23

Ideas/Suggestions. PAGEREF _Toc152954648 \h 23

Possible Canadian Implications and Suggestions. PAGEREF _Toc152954649 \h 24

Conclusion.. PAGEREF _Toc152954650 \h 25

Bibliography.. PAGEREF _Toc152954651 \h 28

Legislation.. PAGEREF _Toc152954652 \h 28

Jurisprudence. PAGEREF _Toc152954653 \h 28

Secondary Material: Articles. PAGEREF _Toc152954654 \h 28

Secondary Material: Reference Material. PAGEREF _Toc152954655 \h 28

Secondary Material: Online Cites. PAGEREF _Toc152954656 \h 29

Appendix.. PAGEREF _Toc152954657 \h 30

1. Information for donation of embryos for stem cell research as required by CIHR.. PAGEREF _Toc152954659 \h 30

Introduction

The interaction of medical technology and advancements in human life and biological tissue offers an array of possibilities and issues. Examples of possibilities abound in the areas of assisted conception and the identification and treatment of diseases. However, hand-in-hand with these possibilities is the situation of ethical responsibility.

Bio-ethics, very generally speaking, is “[t]he ethics of medical and biological research.”[1] This paper will focus on some of the ethical dilemmas faced in regard to the cryo-preservation of embryos.[2] First, it will give a brief description of bio-banking in general. Second, it will discuss the cryo-preservation of embryos, its process and its uses. Third, it will examine the ethical and legal dilemmas faced in the area of ‘frozen embryos’. Finally, it will examine foreseeable problems, ideas/suggestions, and the possible Canadian implications.

What is Bio-Banking?

Bio-banking, as a common-place term, is a relatively new development in the medical community and an extremely hot topic in regard to ethical debates and dilemmas. Bio-banking is the storage in “…repositories of collected human tissue — blood, bone, serum, or sometimes just individuals’ DNA.”[3] Bio-banking has been touted to provide specifically for researchers to be able to identify genetic undercurrents to the diseases that are ravaging our world and to allow a forefront for the identification of new processes to treat and possibly eradicate these same diseases. In fact, “[t]he ultimate goal of bio-banking and clinical genomics is to develop innovative, new targeted diagnostics and therapies to get the right treatment to the right person at the right time.”[4] Therefore, bio-banking is an umbrella term for several specific branches of the storage of human tissue.

What is Cryo-preservation?

As previously mentioned, bio-banking is the over-arching term used to encompass the storage, in developmental suspension, of human tissue. Several subgroups of bio-banking include, but are not limited to, umbilical cord blood stem cells[5], storage of organ and tissue samples, and storage of sperm and eggs. The storage of sperm and eggs generally falls under the category of cryo-preservation.

Generally speaking, cryo-preservation is the “…freezing [of] tissue or cells in

order to preserve it [them] for the future.”[6] More specifically, “[c]ryopreservation is the

process of freezing tissue or cells in nitrogen.”[7] This paper will be focusing on the specific area of cryo-preservation in the realm of embryos.

What is the Process of Cryo-preservation of Embryos?

In the process of cryo-preservation of embryos several specific steps are utilized. The first step involves the female patient being given hormones in order to cause the release of more than one egg. The second step involves the removal of the egg(s) through laparoscopy. The number of eggs removed could include numbers up to 17 at one time. After the removal of the egg, the third step is to fertilize the egg with the ‘donated’ sperm. At this point the fertilized egg is either surgically inserted into the woman’s uterus or cryo-preserved for future use.[8]

If the cryo-preservation option is chosen, then the embryos are frozen in a solution that also contains cyro-protectants.[9] “Embryos can be frozen at the pronuclear stage (one cell)…[and] up to and including the blastocyst stage (5-7 days after fertilization).”[10] The embryos are “…frozen in liquid nitrogen at a temperature of minus 195 degrees centigrade…[and] can remain in this…state for an indeterminate number of years.”[11]

How are Cryo-preserved Embryos Used?

Cryo-preserved embryos are generally used for In Vitro Fertilization (IVF) and

research. In IVF, “…female and male gametes are joined in a laboratory setting and are allowed to divide into an eight-cell embryo that is then cryogenically preserved so that it may be implanted in a female uterus at a later date.”[12] This medical development has resulted in thousands of IVF clinics around the world. In the United States, specifically, there are hundreds of thousands of embryos in cryogenic suspension.[13] IVF, along with

bio-banking, is a relatively new procedure. For instance, “[t]he first reported human

pregnancy from frozen embryos was reported in 1983 by Trounson and Mohr.”[14]

Cryogenically suspended embryos are also used for research purposes. In

research, it is not the entire embryo that is utilized, but only the stem cells that can be garnered from it. These stem cells are considered extremely important to the continued development of medical treatment. In fact, “[e]mbryonic stem cells are touted as a source of promising treatment for debilitating diseases such as Parkinson’s, Alzheimer’s, diabetes, [and] cardiovascular disease…”[15]

Ethical and Legal Dilemmas

Introduction

Certain ethical issues arise out of the aforementioned definitions and discussions of bio-banking and cryo-preserved embryos. The overarching ethical issue in regard to cryo-preserved embryos is: Should an embryo be accorded the status of ‘life’ or should it be labelled nothing more than ‘property’? This ethical issue may be broken down further into the two categories of parental rights and embryonic rights. These issues are easily identified in the following situations: custody battles in divorce, embryonic adoption and embryonic research.

There are many viewpoints as to when a fertilized egg becomes life. These viewpoints range along a continuum from life is in the individual sperm and egg (the metabolic view) to birth (or more specifically the emergence of self-conscious).[16] A part of this continuum is the Genetic View, which is described as “…the position that the creation of a genetically unique individual is the moment at which life begins. This event is often described as taking place at fertilization, thus fertilization marks the beginning of human life.”[17] This section of the paper examines the aforementioned situations in order to determine whether or not an embryo should be accorded the status of life in accordance with the position described by Scott F. Gilbert as the Genetic View.

Custody Battles in Divorce

The area of custody in family law presents a number of ethical sub-issues. In regard to cryo-preserved embryos, the issue that comes before the courts is whether the embryos should be dealt with under custody provisions, or if they should be dealt with under marital property provisions. While Canada has not had the opportunity to deal with this issue at the Judicial Level,[18] the issue has been dealt with in both case law and legislation in the United States.

Cases and Legislation

In the United States the courts and legislators have afforded three different definitions to the status of frozen embryos: property, property deserving of special respect (or special life) and human life.[19] The lack of concurrence on the definition and, therefore, outcome of the different cases is based on the fact that each state has its own laws and jurisdictions that encompass points not covered by Federal Law, and this area is one of them.

An example of the courts finding the frozen embryos as property is found in the case of York v. Jones.[20] In this case a husband and wife sought the release and transfer of a pre-zygote from an IVF institute to a hospital in California. The doctors refused to consent to the transfer. The couple brought a suit against the IVF clinic in breach of contract and in detinue. The court in York v. Jones found that the couple did have an action because the clinic had converted the couple’s ‘property’ without the legal right. A second case dealing more directly with the custody versus property issue is that of Litowitz v. Litowitz.[21] In this case the couple underwent IVF with a donor egg because the wife was unable to have any more children due to a previous hysterectomy. The first treatment was successful. The couple separated just before the birth of their daughter. The trial court awarded custody of the leftover embryos to the father stating that it was in the best interests of the ‘children.’[22] On appeal the court upheld the trial judge adding that the Respondent had a right not to procreate. However, at the final appeal level the decision was based purely on the IVF contract.[23] By basing the decision on a contract right, the judiciary stated that the cryo-preserved embryos are nothing more than property.

A direct example of the U.S. courts finding that frozen embryos hold an interim

position, such as property deserving of special respect (or special life), is that of Davis v. Davis.[24] This case surrounded a couple who eventually had embryos created and frozen. After six unsuccessful attempts at IVF the couple waited until cryo-preservation could be utilized. After having the embryos frozen the couple divorced. The trial level awarded ‘custody’ to the ‘mother’ in finding that “human life begins at conception.” The appellate level overturned the decision holding that the rights of the father to not have the state interfere in his procreation rights outweighed the mother’s rights to donate the embryos to another couple. Further, it was decided that the prior agreement (at the time of the original situation) that unused embryos should be destroyed, was to be upheld. The finding of the Tennessee Supreme Court was that,

We conclude that preembryos are not, strictly speaking, either "persons"

or "property," but occupy an interim category that entitles them to special

respect because of their potential for human life. It follows that any

interest that Mary Sue Davis and Junior Davis have in the preembryos in

this case is not a true property interest.[25]

An example of how the U.S. has defined the embryo as ‘life’ is found in legislation that has been adopted by the Louisiana Legislature. This statute deems “…frozen embryos to be ‘persons’. However, under this statute, embryos lose the status of person if they fail to develop within thirty-six hours of in vitro fertilization.”[26] A final suggestion is given by Angela Upchurch,

While no court has expressly considered it, the only other appropriate

analysis may be to view the embryo as a person without legal

decision making capacity, making a guardianship arrangement

appropriate.[27]

Discussion

All of the above decisions reveal another ethical issue in regard to parental rights as autonomous beings. If the definition of property is applied to embryos it could, in essence, leave the situation wide open for the autonomy of one of the progenitors to be overridden by the state. The judiciary deciding the placement of the embryo(s) based on contractual rights because it is property leaves the final owner with the choice as to the final outcome of the embryo(s). In essence, once awarded ownership the individual owner could have the embryo(s) implanted, thereby forcing the outcome of biological parenthood (ie. child support payments) on an unwilling participant through the application of the Best Interests of the Child test.[28] Defining embryos as property may, therefore, impose parenthood on an unwilling participant who would then be without the autonomy to end the situation. Further, to determine the embryo as property deserving of special respect affords no additional answer to the ethical dilemma. It simply complicates the matter by creating a hybrid of property and life.

Defining an embryo as life would also have an effect on parental rights. To determine an embryo as human life would be to afford it full legal status. This would provide problems if the progenitors were to choose to destroy the left-over embryos in a divorce situation as it would become equivalent to murder. It would also raise ethical issues if the progenitors, within a divorce situation or out of the divorce situation, choose to give the unused embryos to a research institute. This is based on the fact that the progenitors would be donating a life that they are legally responsible for to very invasive and life-ending experimentation.

Subconclusion

A review of the cases surrounding family law, IVF, and the possible ethical

issues that arise does not afford enough information to make a coherent argument as to embryos being afforded the status of life or property. At this juncture all that it is evident is that even the judiciary and the legislature of the United States has yet to come to a unified status in an embryonic definition. Therefore, in order to come to a conclusion on whether a frozen embryo should be afforded the definition of life, as described by the Genetic View, other areas need to be examined.

Embryonic Adoption

Embryonic adoption is another area that offers an ethical dilemma in regard to frozen embryos. Once again, in determining whether an embryo should be accorded the status of life lies the underlying ethical issues of the rights of the parents and the rights of the embryos. Generally speaking, embryonic adoption is exactly as it sounds — the adoption of an embryo by a couple. Olga Batsedis states that, “Embryo adoption is known as much for its ingenuity as it is for its moral and political ramifications.”[29] In reference to embryonic adoption there is the ethical issue in regard to the abolishing of the biological parental rights. In reference to embryo rights there may be the ethical issue/argument of genetic selection, the abortion question, and the practical aspect of securing a safe environment in which to nurture the child, from its embryonic state to adulthood. It should be noted that from the outset that it would appear that under embryonic adoption the default position would have to be that the embryo is being accorded the status of life and not that of property.

Abolishment of Parental Rights

Examination of parental rights presents the immediate issue of the abolishment of

the biological parental rights that the progenitors legally have over the embryo. This ethical issue, generally the aspect of autonomy, is no different than what is already dealt with in traditional adoption procedures. As Batsedis states, “…biological parents have [to have] terminated their parental rights by signing a consent to adoption.”[30] Autonomy of the individual rests substantially on the right to choice. In traditional adoption the autonomy issue is covered by the ability of the progenitors to choose to give up their parental rights. This option is not being forced upon them, and, therefore, is not an ethical breach.

The situation of embryo adoption is very similar to that of traditional adoption. Embryo adoption also involves the autonomy to choose to sever parental rights. However, one of the large differences is that contrary to traditional adoption, where, “…even after the consent to adoption is signed, there is still the fear that the biological parents may change their minds and that the adoption may be disrupted or dissolved…”[31] embryo adoption consents often apply a three day time limit to change your mind on relinquishing your rights.[32] This type of consent gives the donators, the progenitors, time to rethink their decision; thereby, still protecting their biological rights. Further, it protects the rights of the adoptee parents in that after three days there is the knowledge that there will not be a future battle over parental rights.

Further Ethical Issues in Embryonic Adoption

Further ethical dilemmas are raised when examining the rights of embryos in regard to embryonic adoption. These dilemmas include, but are not limited to, genetic selection, the abortion issue, and the practical aspect of securing a safe environment in which to nurture the child, from its embryonic state to adulthood.

Genetic Selection

Genetic selection may present ethical issues in regard to traditional adoption. However, it is a much greater factor in embryonic adoption. For example, “…embryo adoption provides that ‘adoptive parents are told the race, physical characteristics, and genetic history of the donor family.’”[33] Based on these revelations the adoptive parents are able to, in essence, baby shop.[34] They can select a family with similar physical characteristics to their own. They are also able to differentiate between embryos that come from families with, what the adoptee parents would characterize as, unfavourable family genetics, and those whom they characterize as having favourable family genetics.[35]

Parental Rights, Autonomy and Abortion

Opponents of embryo adoption present the argument that autonomy has offered the choice of abortion. Stating that the adoption of an embryo is possible is to unequivocally categorize the embryo as a living being, and thereby make the assertion that conception is the point at which life begins.[36] It appears that this argument is based on the precept that the disallowance of embryo termination is because it is equivalent to murder. If this viewpoint is accepted it will lead to the termination of abortion rights and therefore the autonomy of the woman to choose what to do with her body, and this is an argument that has already been made and won. However, abortion can be distinguished from embryo adoption because cryogenically suspended embryos are not attached to the mother and therefore the situation of physical autonomy cannot arise. As Colin Rasmussen states:

…since an in vitro embryo does not begin its life within a human

body, there is no legal human person whose right to bodily integrity necessarily overrides the status of the embryo. Therefore, the

possibility exists for an embryo to have a distinct set of rights that

does not directly conflict with those of its mother.[37]

Embryo Rights and Placement

A third ethical issue is in regard to the practical aspect of securing a safe environment in which to nurture the child, from its embryonic state to adulthood. This same problem arises in traditional adoption. As Batsedis point out, “…embryo adoption also requires a home study to determine whether the adoptive parents can provide a proper and loving home for the child they will bear.”[38] Therefore, embryo adoption has dealt with the issue of providing a safe environment in the same manner as traditional adoption. Further, embryo adoption affords a form of psychological emotional safety to the future child in that, “[i]t affords these children with the ability to have genetic siblings. This is possible because couples who choose embryo adoption do not adopt a singular embryo…[but] numerous embryos from one couple…”[39]

Sibling Marriage and Religion

There are two other issues raised in regard to embryo adoption: the possibility of later marrying a sibling and the fact that, “[i]ndividuals who seek embryo adoption and those who place their embryos for adoption tend to be Christians with a strong religious background.”[40] The aspect of marrying a sibling is also at issue in traditional adoption; therefore, it has been effectively dealt with through those same procedures. The aspect regarding adoption by religious families appears to be immaterial at best. This is based on the fact that religious individual also adopt through the traditional means. The statement that “many who seek embryo adoption and those who place their embryos for adoption tend to be Christian…” does not remove other individuals from being able to

place their embryos up for adoption or adopting an embryo.[41]

Subconclusion

Through the examination of embryo adoption it is obvious that the identification of a cryogenetically suspended embryo as property deserving of special respect because it holds the potential for human life, as per Davis, is not available. If the embryo were defined as this type of ‘property’ the progenitors would be able to sell their frozen embryos to prospective adoptive parents. Therefore, in order to identify the embryo as property in this regard is to be able to make a life, or potential life, a commodity. Making life a commodity is against common moral ethics and has been legislated against.[42] Therefore, the only option that remains in this situation is that of defining the frozen embryo as life as in the Louisiana Statute. This is stated because to define a frozen embryo as mere property is not logical in the terminology of embryo adoption because we as humans do not generally go through the wringer imposed by adoption protocol for a non-living organism.

While it appears that defining a frozen embryo as life is appropriate in the specific area of embryonic adoption it does not yet provide a solid argument as to defining a frozen embryo as life in the general sense.

Embryonic Research

The final aspect to be examined in whether frozen embryos should be afforded the

status of life, under the aforementioned Genetic View, is that of embryonic research. The general area of research, including human research, brings with it its own bundle of ethical dilemmas. In regard to the specific area of embryonic research the main ethical issue is similar to that of the main question of this paper. In fact, all of the issues surrounding embryonic stem cell research are imbedded in one question with a single sub-issue. The ethical issue is that of consent which involves arguments for and against embryonic research.

Assisted Human Reproduction Act[43]

Embryonic research in Canada is currently governed by the Assisted Human Reproduction Act (AHRA), 2004, c. 2. This legislation defines both consent and embryo in section three. Further, it adds prohibitions as to the kind of research that can be done. For example, section 40(2) strictly prohibits research on embryos without a licence:

40(2) A licence authorizing the use of an in vitro embryo for the purpose

of research may be issued only if the Agency is satisfied that the use is

necessary for the purpose of the proposed research.

In addition, the AHRA requires written consent from each of the progenitors.[44]

Consent

The issue of consent in embryonic research arises whether or not the embryo is accorded the status of life. Very generally speaking the issue of consent in research arises because of the aspect of experimenting on human tissue. Without consent the researchers could, in essence, be found liable in battery. Further, Regnier and Knoppers state that the reasons for this consent are that:

immortalized cell lines will be created that will continue to divide

indefinitely and could be used in different research projects for many

years; these cell lines could have an important commercial value…and

as such research necessarily requires the destruction of embryos.[45]

This information needs to be communicated in that free and informed consent embodies the full knowledge and understanding of the process to be undertaken.

The ethical issue of consent in regard to embryonic research has been fully dealt with in the AHRA and its incorporation of the Canadian Institutes Health Research (CIHR), guidelines. The CIHR guidelines provide a list of information that must be given to individuals who are considering donating their embryos to stem cell research.[46]

The original consent to use the frozen embryos for research may be given at the outset of the IVF treatment. However, Regnier and Knoppers point out that the CIHR guidelines require a second consent at the final decision to donate left-over embryos.[47] This is based on the fact that, “[c]oncrete decisions on the eventual decisions on the eventual fate of spare embryos can only be made when the couple has completed their treatment.”[48] This appears to be a way of protecting the autonomous choice of the individual progenitors.

Right of the ‘Human’ versus the ‘Embryo’

The proponents of embryonic research put forth the number of great discoveries

that have emerged as a result of the research. The greatness of embryonic research has been stated to include IVF for infertile couples, treatment of diseases, and the treatment for devastating injuries, such as paraplegia and quadriplegia.[49] Developments in technology have allowed infertile couples to be able to procreate. Further, as has been seen on several news programs, stem cell research has offered and will continue to offer advances in the areas of paraplegia, with the possibility of the new development of neurons, and more recently the possible developments in the area of developing a cancer vaccine.[50] Therefore, proponents of embryonic research believe that the ethical and legal rights of ‘humans’ to create life, and live life with little or no suffering, forms the ethical basis for the allowance of embryonic research.[51] In addition, there is a new advancement in this field. Dr. Lanza et al. have convincingly demonstrated a way to extract a cell from the embryo without harming its genetic makeup. Replication trials are currently being conducted.[52] Further, as Dr. Lanza et al. state,

The ability to create new stem cell lines and therapies without

destroying embryos would address the ethical concerns of many,

and allow the generation of matched tissue for children and siblings

born from transferred PGD embryos.[53]

Generally speaking, it would appear that proponents of embryonic research would still

prefer that embryos remain defined as property and nothing more. To refer to an embryo as life would complicate the ability, both legally and morally, to be emotionally detached from the research.

While a definition of property would further advance the argument in favour of proponents for embryonic research, there is an opposing argument against embryonic research. The opponents of embryonic research include those that do not believe that God meant us to tread into these areas.[54] Also, Langley and Blackston state that, “Pro-life advocates adamantly argue they are trying to save babies, putting anyone arguing the opposite in a seemingly cold, heartless, and almost criminal light.”[55] Further, if an embryo is defined as life this leads back to dealing with the issue of consent. In simply defining an embryo as human tissue and, therefore, the property of the progenitors, consent can easily and ethically be achieved through the aforementioned methods. However, for those who argue for the status of life, the issue of consent is a serious consideration. While a parent can both give and refuse medical treatment for their children, it is arguably unethical to consent to research upon another life that has the final outcome of ending or endangering that life force.

Subconclusion

On the question of whether or not an embryo should be accorded the status of life under the Genetic View in the research regime, the answer is arguably no. The argument for the right to procreate and the ability to learn about ways to treat and possibly cure diseases appears to hold the stronger argument in today’s society. While the argument against research does bring forth valid points, to base a decision that impacts the entire human race on the moral position of only part of the race seems unethical. However, opponents of embryonic research could argue the same point. However, from a neutral standpoint, i.e. strictly the application of research on spare human tissue without the ability to sustain its own life, the stronger argument is in favour of research, and therefore, the status of life would be inappropriate. Finally, as Rasmussen states,

In terms of reproductive technologies [and, therefore, research],

society needs to develop a rational approach to the development,

regulation and use of these tools, guided by a vision of who we are,

where we are going, and how we plan to get there.[56]

Embryo Implantation Where a Terminal Incident has Occurred

The area encompassing terminal incidents does not specifically deal with the question of whether or not an embryo should be accorded the status of life. In fact, it makes the assumption that the embryo is in fact either life or property deserving of special respect on the basis that it has the potential to become human life. This situation arises where a couple has donated individual gametes at an IVF clinic and had those embryos cryogenically suspended. Then, prior to implantation, one of the progenitors has passed away through a terminal accident or illness.

The first example of this situation to be examined is in reference to the occurrence

of a terminal accident prior to implantation. This situation arises not in the context of a divorce, and, therefore, does not include determination under custody or marital property, nor does it include the aspect of research. This situation occurs when the individual gametes have been donated and embryos created and frozen; however, prior to implantation one or both of the progenitors is killed in an accident. A case of this type took place in Britain in 1999.[57] In this case, “Lance Smith died in a car crash in November 1998 but left a form giving permission for his 36-year-old fiancée to use his sperm.”[58] However, the fiancée did not wish to have the baby. When this information came out, the parents of Lance Smith, the deceased, produced a will they claimed as their son’s which would allow the release of his sperm to them. Their plan was to have a surrogate carry a donated egg implanted with his sperm. They brought a case to enforce the will. The outcome of the situation was in favour of the fiancée. The court stated that they would not allow a “…surrogate mother to take her [the fiancée’s] place.”[59] The argument in the above case was brought about by the case of Diane Blood who, “…won the right to use her dead husband’s sperm…[even though] the consent from her late husband…was [verbal,] not written…”[60]

A similar set of facts could attach itself to a terminal illness situation. Therefore, it is not necessary to restate the possibilities. Also, both situations contain the same ethical issue of consent. While the assumption can be made that the parties are in a content, possibly even joyous, relationship this does not lead to the direct correlation that both of the parties are (were) willing or wanting to consent to the procreation. In fact, the very situation that implantation was not performed immediately goes to the argument that one of the parties was not ready to have children. Therefore, if the courts are to try and act from the same point as the victim’s state of mind, how does that allow for the determination of consent? Further, a question without an answer needs to be posed here. How many women would necessarily want their egg implanted in the womb of another woman, without their express and explicit consent? To hazard a guess, there probably are not that many, as it would go against the argument for autonomy.

If an embryo is defined as property, then the consent to use the property lies with the donor of the human tissue. Therefore, without prior clear, informed consent, the courts should not allow the property to be used by another human being. However, if the embryo is defined as property, it may therefore be included in all will dispositions including an intestacy. Therefore, future implantation would still be a possibility.

However, if the embryo is defined as life then the aspect would be one of custody. ‘Children’ are automatically under the sole care of the surviving spouse or relative. Therefore, in this situation it is possible that allowing for implantation post death of one of the progenitors may be allowed.

In this situation, the application of either the status of life or property to an embryo appears to be inappropriate. Both situations would have the possibility of imposing parenthood on a possibly unwilling participant, i.e. someone who would have a future claim on the deceased’s estate. This is, therefore, a situation where each definition simply brings forth a myriad of other ethical issues.

Discussion

Custody, adoption, and research are three areas with diverse and yet similar issues. The main ethical question still remaining to be answered is: Should an embryo be accorded the status of ‘life’ or should it be labelled nothing more than ‘property’? Prior to answering this question a few other aspects need to be examined.

Foreseeable Problems

The most obvious foreseeable problem to defining an embryo as property is that it may lead to commodifying a potential life. However, on the flip side of the coin is the position that by defining a preembryo as life we are “…individuat[ing] embryos as persons, [and] this would, in essence, state that embryos possess human consciousness or feeling and should never be destroyed.”[61] This statement would drastically go against the current case law which removes the definition of life from feotus’; therefore, giving embryos a higher legal standing than a foetus. To do this would be to reopen the abortion issue, which is something today’s society is not willing to do.

Ideas/Suggestions

If we are to leave the issue of determining the status of the frozen preembryo to the courts, then the logical approach to be taken is to remove the possibility of the embryos being defined as life. Rather, as in the York and Kass decisions, the approach would be to apply only the contractual agreements entered into at the onset of the IVF process. Resolving to maintain a contractual right leaves the very intimate and personal decision of procreation in the hands of the progenitors prior to the IVF treatment.[62] This leaves the process of the choice to procreate in the hands of the people which is where it belongs. To involve the courts in decisions regarding the autonomous choice of the progenitors to bring a life into the world could open the door to the courts further intrusion upon other autonomous choices.

Possible Canadian Implications and Suggestions

As Canada has already dealt with the question of affording the status of life to foetus’, and thereby by extension to embryos, the situation that has been experienced in the United States may never arise. However, since certain current AHRA sections may, if interpreted broadly, be construed to define an embryo as life, Canada should revisit the situation.[63] Therefore, to further ensure that custody battles and consent issues do not arise, it would be in Canada’s best interest to adopt legislation that is similar to that found in Britain, Australia and some American States.

Britain passed legislation[64] in 1990 that “requires that all IVF participants enter into a written agreement as to the disposition of the preembryos in the event of divorce, death or other unforeseen circumstances.”[65] This legislation furthers makes it a requirement that the, “couples must specify the maximum…storage time for their frozen preembryos…[and] In the absence of such an agreement,…[they] can only be stored up to five years before they must be destroyed.”[66]

The Australian legislation was passed somewhat earlier in the 1980s to deal with a situation where preembryos were left ‘orphaned’ following a tragic accident that claimed the life of the both the progenitors.[67] The difference in this legislation is that “…in the event [that] implantation is not possible for the original couple, the preembryos must be made available to other couples rather than be destroyed outright.”[68]

Further, Canada should consider the implementation of legislation similar to that of Colorado and Delaware. In both of these states legislation directly addresses the situation of divorce and frozen embryos. In that,

[i]f divorce occurs before the placement of eggs, sperm, or embryos,

the former spouse is not the parent of the resulting child unless the

former spouse expressly consented to such assisted reproduction for

post-divorce use.[69]

In addition, the Colorado legislation applies the same principle to the situation where a spouse or partner has died.[70] However, this situation would need to be carefully and succinctly drafted. This is due to the aforementioned Best Interests of the Child test. To do away with biological parental responsibilities would be against this proposition. However, an argument could be made that the situation is similar to anonymous gamete donors and the lack of enforcement of parental responsibilities.

Conclusion

From the above discussion, it is obvious that in coming to a decision on whether a

frozen embryo should be afforded the status of life or the status of property comes down to two points:

To consider preembryos as life, to be afforded protections equal to

those of children, gives the preembryo more protection than that of a

fetus, which is at a far greater stage of development…There is also a

danger in deeming frozen preembryos as mere property in that it may

well result in individuals being allowed to sell their preembryos on

the open market, a practice that goes against both the moral conviction

that selling of human tissue is wrong and the fear that creating a

market for preembryos will result in them being cultivated for the

very purpose of sale.[71]

Even in the light of Dr. Lanza et al.’s aforementioned research, to afford embryos the status of life or property offers more ethical dilemmas than it solves. Therefore, the Genetic View of embryos, as described by Scott F. Gilbert, should be rejected in regard to the legal and ethical dichotomy. Rather, adopting the position that an embryo is ‘property deserving of special respect because it holds the potential to develop into human life’ appears to be the appropriate view to take. This removes the ethical dilemma of according the embryo full legal status, including all of the issues that arise with it. Further it will remove the possibility of creating a market for embryos if we define the embryo as pure property.

The situation of frozen embryos and their interaction with divorce, adoption, research, and terminal incidents is a legal and ethical quagmire that cannot be readily resolved. It appears to be obvious that the correct place for this decision lies not with the courts, but with the legislature. As previously mentioned, this problem may never arise in Canada based on the current case law in regard to abortion. However, it would appear that a simple solution to ensure that the issue cannot be raised in a future legal ethical dilemma or moral dilemma would be to provide distinct IVF legislation. Legislation could state that IVF clinics must cryogenically preserve the individual gametes separately and only fertilize the egg with the intention of immediate implantation. This would thereby leave the legal ownership of biological tissue, an individual’s property, in the hands of the individual progenitors.

Bibliography

Legislation

Assisted Human Reproduction Act (AHRA), 2004, c. 2, online: Department of Justice

<http://laws.justice.gc.ca/en/a-13.4/218788.html> (as of 1 December 2006).

Jurisprudence

Davis v. Davis, (1992) 842 S.W. 2d 588 (Tenn. SC) (Lexis).

Kass v. Kass, 91 N.Y.2d 554, 562, 569, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998)

Litowitz v. Litowitz, 48 p. 3d 261 (Wash. 2002) (Lexis)

Martin v. Mineral Springs Hospital, 2001 ABQB 58, [2001] 6 W.W.R. 298 (WL).

York v. Jones, 717 F. Supp. 421, 1989 U.S. Dist (Virginia) (Lexis).

Young v. Young, 84 B.C.L.R. (2d) 1, [1993] 8 W.W.R. 513, 34 B.C.A.C. 161, 108 D.L.R.

(4th) 193, [1993] 4 S.C.R. 3, 18 C.R.R. (2d) 41, [1993] R.D.F. 703 (WL).

Secondary Material: Articles

Batsedis, Olga. “Embryo Adoption a Science Fiction or an Alternative to Traditional

Adoption?” (2003) 41 FAMCR 565 (Lexis).

Caulfield, Timothy. “Underwhelmed: Hyperbole, Regulatory Policy, And The Genetic

Revolution,” (May 2000) 45 McGill L.J. 437 (WL).

Florencio, Patrik S. “Genetics, Parenting, And Children’s Rights In The Twenty-First

Century,” (May, 2000) 45 McGill L.J. 527 (WL).

Gunnison, Katherine Poste. “Poaching the Eggs: Courts and the Custody Battles Over

Frozen Embryos” (2006) 8 J.L. & Fam. Stud. 275 (WL).

Ikehara, Robyn L. “Is Adoption the ‘New’ Solution for Couples in Dispute Over Their

Frozen Embryos?” 15 S. Cal. Rev. L. & Soc. Just. 301 (WL).

Langley, Laura S and Blackston, Joseph W. “Unveiling the Underlying Property Issues

Surrounding Cryopreserved Embryos”, (June 2006), 27 J. Legal Med. 167 (WL).

Pittman, Kim. “Resolving Disputes over the Disposition of Frozen Preembryos: Playing

Catch-up with IVF Technologies”, (Fall 2005) 20 Me. B.J. 228 (WL).

Regnier, Marie-Helene, & Knoppers, Bartha Maria. “Spare Embryos and Stem Cell

Research: Consent Issues” (2003) 11 Health L. Rev. No. 3, 3-12 (Lexis).

Saginur, Madelaine, Kharaboyan, Linda, & Knoppers, Bartha Maria. “Umbilical Cord

Blood Stem Cells: Issues with Private and Public Banks,” (2004) 12 Health L. J. 17-34 (Lexis)

Shanner, Laura. “The Right To Procreate: When Rights Claims Have Gone Wrong”

(August, 1995) 40 McGill L.J. 823 (WL).

Upchruch, Angela K. “The Deep Freeze: A Critical Examination of the Resolution of

Frozen Embryo Disputes Through the Adversarial Process” (2005) 33 Fla. St. U. L.

Rev. 395 (Lexis).

Secondary Material: Reference Material

Oxford Concise English Dictionary, 9^th e.d. s.v. “bioethics”

Secondary Material: Online Cites

Advanced Fertility Center of Chicago, online: <http://www.advancedfertility.com/ cryo.htm> (as of 14 November 2006).

Davis, Brett J. “Bio-Banking 101: Accelerating Personal Medicine,” online: Healthnex

<http://healthnex.typepad.com/web_log/2005/09/biobanking_101_.html> (as of 1 December 2006).

“Fight for Dead Man’s Sperm” BBC News (20 December 1999: 1959), online: BBC

<http://news.bbc.co.uk/2/hi/health/572377.stm> (as of 1 December 2006).

Gilbert, Scott F. Developmental Biology: When Does Human Life Begin 7^th e.d. c. 21,

online: Sinauer Associates <http://7e.devbio.com/article.php?id=162> (as of 1

December 2006).

Hitti, Miranda. “Stem Cells May Lead to Cancer Vaccine” CBS News (9 November

2006), online: WebMD Inc <http://www.cbsnews.com/stories/2006/11/09/health/ webmd/main2170259.shtml?CMP=ILC-SearchStories> and <http://www.cbsnews.com/stories/2006/11/09/health/webmd/main2170302.shtml?CMP=ILC-SearchStories> (as of 1 December 2006).

Lanza, Robert et al. “Human embryonic stem cell lines derived from single blastomeres”

Nature International Weekly Journal of Science (23 August 2006), online: Nature <http://www.nature.com/nature/journal/v444/n7118/abs/nature 05142.html> addendum to article at <http://www.nature.com/nature/ journal/ v444/n7118/full/nature05366.html> (as of 1 December 2006).

“Sperm and Eggs: The Legal Background” BBC News (20 December 1999: 13:45),

online: BBC <http://news.bbc.co.uk/2/hi/health/572512.stm> (as of 1 December 2006).

“Stem Cells May Be Her Only Hope” CBS News (1 August 2005), online: CBS

Broadcasting Inc<http://www.cbsnews.com/stories/2005/08/01/earlyshow/health/ main713122.shtml> (as of 1 December 2006).

Wade, Nicholas. “Journal Clarifies Stem Cell Report” New York Times (22 November

2006), online: The New York Times<http://www.nytimes.com/2006/11/22/ science/23stemcnd.html? ex=1165122000&en= 6324bb f1412fa39c&ei=5070> (as of 1 December 2006).

Appendix

1. Information for donation of embryos for stem cell research as

required by CIHR[72]

1. An explanation that the cell line(s) will be anonymized except if the research involves autologous donation;

B. An assurance that prospective research participants are free not to participate and have the right to withdraw at any time before an anonymized cell line is created;

C. An explanation that the result could result in the production of a cell line that could be maintained for many years and used for different research purposes.

D. An explanation that the research participants will not benefit directly financially from any future commercialization of cell lines; nor will there be any personal benefit in terms of dispositional authority over any cell lines created (i.e., there will be no directed donation of the cells or cell lines to particular individuals), except if the research involves autologous donation.