In this episode of Hull on Estates, Megan Connolly and Rick Bickhram discuss some interesting legal issues that surround assisted reproductive technology and succession law.

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Assisted Reproductive Technology and Succession Law - Hull on Estates Podcast #101

Posted on March 11^th, 2008 by Hull & Hull LLP

Megan Connolly: Hello and welcome to Hull on Estates. You’re listening to Episode 101 of our podcasts on Tuesday, March 11^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Megan Connolly: Hi and welcome to Hull on Estates. I’m Megan Connolly and I’m joined here today by my colleague, Rick Bickhram.

Rick Bickhram: Hello.

Megan Connolly: Recently I attended a conference put on by the Ontario Bar Association and Clare Burns, who’s the Children’s Lawyer for the province of Ontario, presented a very, very interesting paper on assisted reproductive technology and succession law in Ontario. As a starting point, it’s interesting to note that 1 in 8 Canadian couples experience difficulties with fertility and assisted reproductive technologies are becoming increasingly used to help a couple conceive. Now for those of you who aren’t scientifically savvy, assisted reproductive technology is the name used for the process of combining genetic material under specific conditions. I’m not going to spend too much time on all the details because I don’t have a science background myself, but I’ll point out there are two main types. The first is what we call intrauterine insemination or what may be more usually called in vitro fertilization. The other is intrauterine insemination, which I guess more commonly is called artificial insemination.

While this type of technology is very, very helpful in helping people who conceive who otherwise wouldn’t be able to, it raises some very, very interesting legal issues. For example, what happens if the donor of genetic material dies? Who then becomes entitled to use it? Or what happens when you have a couple who are together, decide they want to create the sort of genetic material by way of say, in vitro fertilization. There’s material that’s being stored, they break up.  Who then becomes entitled to use it, if anyone?

Rick Bickhram: Those are all really well-raised issues, Megan, and looking at our laws and looking at where the technology is today or the evolution of technology is, I think it’s trite to say that our legal system hasn’t kept pace with the advances in technologies and that is natural because technology increases or the advances in technologies steps forward every day. Looking at our legal statutes that address the issues as my colleague, Megan, has just pointed out.  In Ontario, we do have one statute or a statute that addresses the gifts and transplants from the human body. And this statute is called the Trillium Gift of Life Network Act.

Megan Connolly: Right.  Now what does that provide for?

Rick Bickhram: The Trillium Gift of Life Network Act provides for gifts, transplants and the use of human bodies and body parts during life and after death. However, it specifically excludes sperm, ova and embryos from the definition of tissues.

Megan Connolly: So, I guess as a result, neither the deceased nor his or her next-of-kin can consent to the use of genetic material like frozen sperm or frozen embryos in the same way they can consent to say, a heart transplant.

Rick Bickhram: You hit the nail right on the head, Megan. The scope of the Act here does not provide for the donation of frozen genetic material. Luckily, there is an Act, it’s a federal statute, otherwise known as the Assisted Human Reproduction Act.

Megan Connolly: And what does that provide for?

Rick Bickhram: This Act provides for – or, in fact, it states, from my understanding, is that the human reproductive material can be removed from a donor’s body after the death for the purpose of creating an embryo, if the donor has given written consent. And from the reading of the statute, in my view, the Act emphasizes written consent.

Megan Connolly: Right and there are specific requirements in the Act to the written consent. It’s not just like, anything in writing. These requirements include an acknowledgement on the donor’s part that he or she was informed of the use that the genetic material would be put to. So the effect is that genetic material under the Assisted Human Reproduction Act can only be used after a deceased’s death where, during his or her lifetime, he or she provided informed written consent, clearly contemplated the uses the material would be put to and who may use it. Now, I guess this is a starting point, but it’s very, very narrow. A lot of people don’t think, “What’s going to happen to my frozen sperm or my frozen embryos when I die?”

Rick Bickhram: Yes, Megan. Well, in all fairness, it’s not something that we or that donors, I don’t think, put their mind to. However, that is why, I guess, we’re podcasting on it. It’s to bring awareness to the issue and to present the need to at least contemplate it.

Megan Connolly: Now, one thing that the Trillium Gift of Life Network Act and the Assisted Human Reproduction Act have in common is they deal with what happens to genetic material after someone dies. Now, as I raised at the beginning, you can still end up with disputes over what happens with the genetic material when people are still living. And at the beginning, the example I used is, you have a couple who maybe create embryos, freeze the embryos, they then split up and a dispute arises over what happens with the material. Who has the right to it, does anyone have the right to it and can it still be used?

On that note, Rick and I actually found a couple of interesting cases and they were discussed in further detail in Clare Burns’ paper, where this issue of what happens when a fight for genetic material breaks out when people are living. One of the cases is from Alberta. The other is from the United Kingdom.  And as we’ll discuss in a moment, they reached similar conclusions, but the underlying rationale behind each is slightly different and I think very interesting.

Rick Bickhram: The first case that I’d like to touch upon or that we would like to touch upon in North America is known as Calfield v. Wong. This is the Alberta case. Wong was Calfield’s partner.  And Wong, the gentleman, agreed to help Calfield become pregnant. As he agreed to help her become pregnant, he decided to donate some of his sperm to a sister in that regard. My understanding is that she became pregnant, maintained  4 embryos in storage at a fertility clinic.

Megan Connolly: Right, so then what happened is the relationship broke down and you had 2 couples with genetic material sitting out there, fighting over what to do with it. Wong, the male, decided that he wasn’t going to consent to the release of the remaining embryos because he didn’t want Calfield pregnant again with his children.

Rick Bickhram: To take a step back, I just want to emphasize that Wong had provided his sperm to assist Calfield become pregnant, and in that regard, he donated his sperm to a sperm bank where they fertilized embryos.

Megan Connolly: Well they fertilized the eggs and then they became embryos…

Rick Bickhram:  Embryos.

Megan Connolly:  There’s your science lesson, Rick. And I think it’s interesting, you said at the beginning they were partners and I think the partnership aspect of the case became very interesting, because the Court looked at the relationship between the two and said, “You know, they weren’t dating. It wasn’t a long term relationship. They didn’t have a relationship of inter-dependence or any permanence. What they really were was friends and that Wong just wanted to help Calfield out and gave her his sperm as a gift.”

Rick Bickhram: See and that’s – and based on that rationale, the Court, in this case, held that the embryos were Calfield’s property and that she could use them in such a way as she saw fit.

Megan Connolly: So right, that’s what it said.  It said that implicit in the gift was that they were hers to keep and use as she choose and that when he gave it to her, he really didn’t have any expectation of continued involvement. And I think the first thing I noticed is just the – I guess the way the Court looked at this. It was a very, very private law perspective. It was…the embryos were treated as property, and the, sort of, sperm was something that could be gifted and could be accepted.  And that in that gift, I guess, a proprietary right to it was lost.

Now this case is similar to a case from the United Kingdom which is Evans v. The United Kingdom, and it had somewhat similar facts. The applicant, in this case, and her partner… I’m not sure if they had been married, but they had been, I guess, in a relationship of more permanence, had gone to a fertility clinic and the woman had found out she was suffering from ovarian cancer and would have to have her ovaries removed. Before doing so, she had ova extracted and the couple consented to in vitro fertilization, using the ova and the man’s sperm. I guess the first thing I had noticed that this was different than in Canada. In the U.K., there was legislation in place and the legislation provided that either partner could withdraw consent at any time before the embryos were implanted. Now, sort of like in the first case, the embryos were created, stored at the clinic, the couple’s relationship broke down and fighting ensued. The husband wrote to the clinic asking that the embryos be destroyed –

Rick Bickhram: Well subsequently after that, from what I understand, is that the wife commenced legal proceedings seeking an injunction and basically she relied on some European conventions based on human rights and fundamental freedoms. And that was her angle or twist on the whole legal matter here, is that she decided to rely on fundamental freedoms and the right to life of the embryo, to preserve the embryos from being destroyed or to prevent this gentleman from –

Megan Connolly: Withdrawing his consent. And I think that there are three main aspects to her argument. The first was the issue of right to life. And the right to life was that of the embryo, and that by permitting him to withdraw his consent, that the embryo’s right to life would be violated. The second was the right to respect for private and family life, and this is the idea of, where, I guess, she saw as improper intervention by the government into a private and familial matter. And the third was more generally that the law was discriminatory against her.

Rick Bickhram: I believe this case ended up going to the European Court of Human Rights.

Megan Connolly: Right it did.  But first of all – I was going to say, first of all it went to the High Court in the U.K.  And this is interesting to note because in Europe, things work a bit differently. You had the High Court in the U.K. They dismissed her claim and said that parliament had provided him the right to withdraw consent, that they were aware of the act when they entered into the agreement or when they started the treatment. They also said that the embryo didn’t have a right to life and that there was no discrimination. The Court of Appeal affirmed the ruling and then the House of Lords declined to hear it. Now in Europe, as I was saying, it’s different because after you’ve run out of luck in your own country, there’s also the European Court of Human Rights, and that’s where she appealed to next.

Rick Bickhram: And from my understanding, what the Courts at the European Court of Human Rights did was, they struck a fair balance between the respect for human dignity and free will in the promotion of consent, legal clarity and certainty in law.

Megan Connolly: So I thought that was interesting. On the one hand, they were saying, “Yes, human dignity and free will is important. But in an organized society, there needs to be clarity and when there are laws and people behave in such a way on reliance or relying on those laws, expectations are created and the Court should be loathe to simply interfere because somebody later changes their mind.”

The other thing that the European Court of Human Rights said, and I thought was interesting, was that there had been a lot of focus on the woman’s desire to have a child and that’s really what the Court or what the case had been framed around. However, it pointed out that there’s no basis to assume that her desire to have a child took precedence over the man’s right not to become a parent. So, Rick, in those two cases, you see similar results, but two different approaches. The first was the North American approach, where it was much more of a private law perspective. It was based on property rights, on the idea of gift, on contract and, I guess, issues of that nature. In Europe, it was centred much more on human rights. It became the right to life, discrimination, the right of the estate to interfere or not to interfere in people’s private lives.

Rick Bickhram: That’s an interesting distinction that you make between the laws over in Europe or in the U.K. and the North American rules. I think that brings us to the end of this week’s discussion. Thanks for listening to our audience out there, and thanks for joining me today. Megan?

Megan Connolly: It was a pleasure, Rick, and I look forward to podcasting with you again soon.

Rick Bickhram: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull.com where you will find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m out.

Megan Connolly: Oh, ha ha. And I’m Megan Connolly. Until next week, so long.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

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/mem

In addition, Corina Weigl, the Chair of the 2006-2007 Section Executive presented a report on the past year's activities undertaken, and dealt with, by the Section Executive.

Following Ms. Weigl's report, the slate for the 2007-2008 Section Executive was dealt with and confirmed.

The 2007-2008 Section Executive is: Jordan Atin (Chair), Kimberly Whaley (Vice-Chair), Corina Weigl (Past-Chair) and Suzana Popovic-Montag (Secretary), together with the following Members-at-Large: Ann Elise Alexander, Robert Coates, Ed Esposto, Jan Goddard, Susan Heakes, Danielle Joel, Sean Lawler, Mitchell Leitman, Joanna Ringrose, Susan Stamm, Sender Tator, Craig Vander Zee, Mary Wahbi and Melanie Yach.

I thoroughly enjoyed working with this past year's Section Executive and look forward to working with the 2007-2008 Section Executive and Jordan, its new Chair.

Thanks for reading,

Craig 
 

Before appearing in Court on a date, counsel are required to file with the Court, either two or three days (depending on the respective Court office) before the hearing date, a Confirmation of Motion form, confirming if the matter is proceeding, and if so, on what basis and in respect of what issues. The Court files pertaining to the matters proceeding on a given day are, generally speaking, given to the sitting Judge the day before.

Often matters which were confirmed on the Confirmation of Motion form as proceeding end up getting adjourned on consent, or proceed on fewer issues than indicated. Judges become frustrated when such situations arise if counsel, knowing that the status of a matter has changed, did not advise the Court as soon as possible with the result that the Judge needlessly spent significant time reviewing a file which in the end was not proceeding, in whole or in part.

On March 27, 2007, at an Ontario Bar Association, Trusts & Estates section meeting attended by a panel of several Justices, Justice Perell noted that to assist Judges in preparing for the next day's matters, counsel can do the following:

(i) specifically list on the Confirmation of Motion form the materials that are being relied upon by the parties,

(ii) if the file is extensive, have someone attend at Court the day before the hearing date to organize the Court file and determine if all of the materials necessary for the hearing are in the file and, if not, to file a copy

(iii) write to the Court office should the status of the matter change between the filing of the Confirmation of Motion form and the hearing date, and

(iv) write to the Court office, if necessary, to advise as to the materials that are required for the hearing.

By following these suggestions we all benefit as the Court will be able spend less time on the matters that need less time and more on the substantive ones that justifiably need more time and due consideration.

Have a good day.
Craig

The meeting continued with presentations by Justices Greer, Croll, Perell and Spies of the estates list. They addressed what the estates bench and bar can do better. The judges touched upon the following matters:

• The Estates court will be sitting every week this summer;  
• "1 1/2" judges will be sitting every week (1 in the summer months);  
• At some point, an initiative will be put in place whereby the first appearance for long applications will be a 15 minute timetabling appointment;  
• The judges stressed the importance of advising the estates office early if a motion or application is not proceeding, or if it is to be proceeding on consent;  
• An e-scheduling pilot project will be put in place soon;  
• The judges emphasized the advisability of filing a family tree as part of the record;
• In guardianship applications, where the Public Guardian and Trustee has sent a letter raising issues, it may be advisable for a supplementary affidavit to be filed setting out how the issues raised by the Public Guardian and Trustee have been addressed; 
• Counsel should try to simplify matters by setting out in the confirmation form what materials are to be reviewed by the judge, and, possibly, by attending at the court office the day before the proceeding in order to tag what materials are to be reviewed;
• Counsel should consider the advisability of having a case management judge appointed in certain proceedings; 
• When submitting an "unusual" over the counter motion, counsel should consider sending an explanatory covering letter, and requesting that the matter be put before a judge.
• Mr. Justice Perell referred to a recent work which noted that in an information economy, what is scarce or valuable is attention. Applying this to advocacy, counsel should ensure that their message is effectively and efficiently packaged so that judicial attention is captured and focused. Counsel should have this in mind when considering the procedures to be used to determine the issues, and when preparing materials.
  

Until tomorrow,

Paul Trudelle