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Paper offers guidance to fertility clinics on contracts involving frozen embryo rights

Creating a human life is a profound act, and one that can create a lot of legal complications when done in the lab. The use of artificial reproductive technologies, while allowing couples to exercise increased control over their ability to procreate, can result in difficult legal issues when disagreements later arise.

A recently published paper which looked at the issue highlighted how case law dealing with ownership rights over frozen embryos leave a lot to be desired in terms of clarity. That paper also recommended a variety of measures that can be taken both by couples and clinics to reduce legal problems when fertilized embryos are frozen. 

The paper recommends, first of all, that clinics always require parties to execute a binding legal agreement before entering into the process embryo creation and storage. Second, clinics are advised not to blend contractual agreement with other forms. The purpose of keeping the agreement separate is to avoid confusion and to ensure both parties understand their rights and obligations under the contract. Thirdly, both parties should be made to clearly understand that the terms of the original agreement stand from the time the agreement is made, and that one party is not able to change his or her mind and unilaterally alter the agreement.

Two other recommendations the paper makes for clinics are to ensure that parties understand that parental obligations are not compulsory if one party decides to use an embryo against the other parent’s desires. Finally, the paper also recommends that both parties include terms in the contract which anticipate loss of fertility and identify how to address embryo use in such circumstances.

In our next post, we’ll continue looking at this issue and the importance of involving an experienced advocate in negotiating the terms of these agreements.

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