By andy ho senior writer
IN A recent case here, a woman sued her former husband for custody of their young daughter as well as 12 frozen embryos they had made.
The Family Court awarded "sole custody of the embryos" to her so she could decide unilaterally the future of the embryos and/or any children born thereof and he was not to interfere. The woman then thawed the frozen embryos and had them interred in a niche.
Embryos are created by couples who go to a fertility clinic to try for a baby by in-vitro fertilisation (IVF). His sperm is used to fertilise her eggs and the embryos that result from this will be implanted into her womb.
Since harvesting eggs from a woman to make embryos puts her body through lots of very dangerous drugs, various surgical procedures, several tests and a great deal of stress, usually each cycle aims to harvest more eggs than needed. Embryos are then created using all of them and excess embryos are frozen. Once frozen, embryos can be thawed out when needed at any time in the foreseeable future. At that point, their cells start dividing and they can be implanted into the mother's womb to develop into a foetus, at the right time of the woman's menstrual cycle.
The Health Ministry's rules do not permit the use of embryos to treat infertility if they have been frozen for over 10 years. After 10 years, they may be used for research if the progenitors agree.
Not all frozen embryos are ultimately used if IVF completes the family for the couple concerned, or if the couple gives up on the very taxing IVF journey of trying for a baby, or if divorce occurs.
Who gets the embryos then? Currently, there is no law regulating IVF nor any that spells out the legal position on frozen embryos. There are only practice guidelines that are enforced as part of the ministry's licensing and accreditation requirements for IVF centres to operate here. The guidelines require that no couple may access IVF services without pre-agreeing on how to dispose of their frozen embryos in case of separation, divorce or death. Couples must state their preferences when signing the informed consent form to secure IVF services.
The ministry requires IVF centres to "seek written instructions from every couple whose gametes/embryos are to be stored" before IVF is ever begun concerning how they want their gametes (sperms/eggs) or embryos to be disposed of "in the event of separation... premature death or divorce... or incapacitation".
Yet, having such a written agreement within the informed consent form does not stop a divorcing spouse from contesting it. In such a situation, the judge must then consider if it reflects the intentions of both parties when it was signed.
This is because the infertile couple is often desperate and willing to do almost anything to get a baby, so signing a consent form is the least of their worries. Given the stress of trying for a baby, they are not likely to have carefully weighed who gets what, including embryos, if they ever divorce.
At the time of signing, they are working with, not against, each other. Thus such an agreement is unlikely to reflect their true interests at divorce.
[And buyers of property are desperate and willing to pay any price for a flat or a home. It is likely that any agreement as to price and Cash Over Valuation does not reflect the true market value of the property, let alone the interest of the buyer. Does that mean that a court should decide if paying above the market price (valuation price) of a property properly reflects the true intent of the buyer or if they have been irrationally influenced by their desperation? If Stress and Desperation are a defence against Caveat Emptor and grounds for invalidating legal agreements, we would be a legal and contractual limbo.]
Of course, prenuptial agreements are signed (in jurisdictions where they are legal) when people are very much in love, yet are enforced at divorce. But even if prenuptials specify child custody at divorce, courts are not bound by it as they will decide such matters in the child's best interests instead.
More fundamentally, you can argue that it is coercive to require couples to sign off on disposing of embryos as a precondition for IVF treatment. Couples who want IVF do not really have a choice not to agree on disposing of embryos. So it may be an invalid contract.
[So? When I bought my flat I had no choice but to agree to pay S&C charges, comply with minimum occupancy rules, sub-tenancy rules, and when I sell the flat, rules about the eligibility of potential buyers. Does that make my sale and purchase agreement for my flat invalid?]
Instead of relying on past agreements therefore, the court will have to make its own decision on distributing embryos equitably at divorce. Some may argue that the right by default should go to the woman, in the same way that any decision to abort a pregnancy is her exclusive right by virtue of a woman's right to privacy and bodily integrity. However, such rights may not kick in until implantation occurs and a foetus develops.
If both parties are indifferent about the embryos, no legal issue arises. But if both want the embryos, then the woman should arguably get more since, compared with sperm donation, she had to bear considerable physical risks and psychological stress to have her eggs harvested to make them.
What if one party wants possession of the embryos for implantation - the woman so she can get pregnant herself, say, or the husband in case his new wife (if any) needs them - but the other party objects? Or if one party wants to donate them anonymously to other infertile couples but the other party objects?
Then, the issue of "coerced parenthood" emerges. Since an embryo contains DNA from both man and woman, making a baby from it against either party's wish enforces genetic parenthood on the reluctant party. This would violate one's freedom of personal choice to decide if and when to become a parent.
In such cases, the court could award the embryos to the party who wants them - in return for a consideration perhaps - but also condition on them contracting for the other party to be legally accorded non-parental status. (This would be the inverse of adoption, which basically establishes parental status by contract.)
[Brilliant! Wonderful suggestions! So why can't these terms and conditions be put in the agreement prior to IVF treatment? The whole point of legal agreements is to avoid the HIGH cost of court cases and court judgements which even in efficient Singapore has a time factor.]
Finally, what if one party wants to donate the embryos for research or simply to be thawed out and destroyed while the other objects? Then the embryos could be frozen indefinitely if one party will pay for storage costs. But if that party stops paying, the numbers of abandoned embryos could rise over time.
At any rate, the court might have to grapple with some imponderables such as when life begins as well as the religious convictions of both parties, if any.
[No it doesn't. Life begins at birth (or whatever the law says currently) or abortions will have to be outlawed.]
Things would be clearer if the courts had statutory guidance about ownership and parentage of frozen embryos. Thus, Parliament should consider such a law.
[The issue raised in this article is a valid question. However, I cannot help but be discomfited by the direction Dr Ho seems to be suggesting here as well as his previous article on Advance Medical Directive (AMD). In his previous article, Dr Ho makes the observation that an AMD is an imposition of pre-commitment by his past self on his present and future self and suggests that that is in principle wrong. Here he suggests that a contract or agreement a couple pre-IVF makes is coerced and so invalid, and that pre-agreements are unreliable.
His points are valid, but his proposal to set aside all agreements is rather extreme. There may be some cases were the parties to the agreement may have entered into the agreement in the less than competent state of mind and the agreement should be set aside. But these are to be decided on a case by case basis if there are prima facie evidence for such a claim.
The other issues he raised are all valid issues that couples and IVF clinic should discuss and put into the agreement prior to IVF treatment.
And couples have a choice. Agree to the deposition of the products of IVF before the start, or walk away from the IVF procedure.]
In effect he is arguing that these agreement or contracts are invalid.]