Recognising proprietary interest in frozen embryos
Author - LING, Hiu Lok Kevin
It has long been a dream for infertile couples to start a family. As such, in vitro fertilisation (IVF) is gaining ground to help couples who have passed their “prime time” for natural conception. As shown below, statistics indicate that the number of embryos stored by reproductive technology centres (RTC) has doubled from that of a decade ago, proving IVF’s popularity.
Graph 1. Embryos Stored by Reproductive Technology Centres in Hong Kong (2009-2021)
Yet with its prevailing use, disputes concerning frozen embryos, the product of IVF, inevitably arise. For instance, if RTCs refuse to follow my instruction regarding my frozen embryos, can I bring legal action to force them to do so? Intuitively, the answer should be yes. But surprisingly, our law may take a contrary view.
Why? Unlike some other common law jurisdictions (e.g. Ontario, Canada and Virginia, US), our law is reluctant to recognise embryos as property, which restricts donors’ rights to bring proprietary claims demanding the return of their embryos. So, unless the IVF service contract provides an option for repossession, donors may find it difficult to win in this situation.
Let’s look at the law now.
Refusal to dispose: York v. Jones (1989)
First, why does proprietary recognition matter? An interesting situation that sets up our discussion is York v. Jones (1989).
The Yorks stored some frozen embryos in the defendant RTC and tried to have them transferred to another hospital. But the defendant refused, contending that was not the kind of disposition stipulated in their contract. The only three options listed therein were (1) donation to another infertile couple, (2) donation for approved embryo research, and (3) thawing. The Yorks sued.
Embryos disputes: Contractual Approach vs. Proprietary Approach
York serves as a good example of a proprietary approach in dealing with embryo disputes. By recognising embryos as property, the courts can use property law concepts (e.g., bailment and detinue) to deal with some of the issues that can arise.
The proprietary approach in York is opposed to the contractual approach. The latter emphasises that all rights and obligations of parties in IVF services derive from their contracts.
Had a purely contractual approach been used, the Yorks would, unfortunately, be left with no choice but to go with the three options offered by the contract with the RTC.
Embryos as property: Applying the Ainsworth Test
The Virginia court supported donors’ claim following a proprietary path, but can Hong Kong court do the same in like cases? In both Hong Kong and English law, the leading test for whether something is property or not is encapsulated in National Provincial Bank v. Ainsworth (1965).
According to Ainsworth, there are four elements to the test. The rights claimed must be:
(2) Identifiable by third parties;
(3) Capable in their nature of assumption by third parties, and
(4) Have some degree of permanence or stability.
Seemingly, embryos may satisfy the Ainsworth test. Embryos are sufficiently distinct and definable. The parties involved in IVF services can easily identify them. Their assignment from one party to another is possible, so capability of assumption is not an issue. Although they grow rapidly, they hold some stability. Accordingly, Ainsworth will likely support proprietary recognition in embryos.
If York in Hong Kong: Problems with No Property Rule
Be that as it may, the Ainsworth answer is not conclusive. The hindrance lies in ancient English case law.
Back in the 17th century, a ‘no-property in human body’ rule materialised from cases regarding corpses. (e.g., Haynes's Case (1614) 12 Co. REP. 113, Handyside’s case (1749) 2 East PC 652) It is thus reasonably arguable that embryos, as reproductive materials produced by humans, are governed by the no-property rule, thereby rendering them incapable of being property.
The rule matters because without proprietary recognition, there is no basis for proprietary detinue and bailment claims. Therefore, a Hong Kong version of York may follow the purely contractual approach. The three options bind them.
Can exceptions help?
Fortunately, common law has developed to provide exceptions to the no-property rule. In particular, the work and skill exception may help aggrieved donors.
The work and skill exception had its genesis in Doodeward v. Spence (1908). The case was a detinue action concerning a two-headed stillborn baby stored in a can filled with paraffin oil. The action succeeded.
Noting the no-property rule, the Doodeward majority held that when a person dealt with (part of) a human body by lawful exercise of work and skill, different attributes were acquired so that it was possible to grant the (part of) the human body proprietary recognition (Griffith CJ, -) It follows that the exception applied when the plaintiff stored the stillborn baby in paraffin oil. Accordingly, the stillborn baby was recognised as property, which in turn formed the basis for a successful detinue action.
By analogy, the Doodeward exception may apply to embryos. Usually, IVF entails the sophisticated application of work and skills, including taking eggs from women’s ovaries, fertilising them on Petri dishes, and freezing them for later use. These efforts prevent the embryos from perishing and confer substantially different attributes on them. Applying Doodeward, this is a lawful exercise of work and skills, and a proprietary interest therein may hence be upheld.
Yearworth doctrinal shift: can it help?
Alternatively, donors may resort to the ‘contextual approach’ first identified in Yearworth v North Bristol NHS Trust (2009).
In Yearworth, the court was asked whether frozen sperm can be regarded as property for the purpose of bringing tort of negligence and breach of bailment claims. The court answered affirmatively. (-)
Whilst acknowledging that the Doodeward exception easily applied to this case, the Yearworth court proposed an alternative approach. The broader approach taken by the Yearworth court suggested that courts should look into the specific context of the case and decide whether property status should be granted in that context. ()
As such, the court in Yearworth enquired whether the case facts demonstrated the incidents of a proprietary interest in the sperm. It observed that the claimants had rights to use the sperm for their later benefit, and to exclude others from using their sperm. ([45(f)]) These attributes were akin to property, so the court arrived at a proprietary finding.
In this light, embryos may also be regarded as property applying the Yearworth contextual approach. Donors in IVF typically have rights to use and exclude others from using these embryos just like the Yearworth claimants. Thus, the analogy will likely support the finding of a proprietary interest in embryos.
Remedy: Contract vs. Property
Back to York, suppose a proprietary interest is recognised, what can donors do? Unlike the purely contractual approach, donors are no longer bound by the options in their contract with the RTC. Property law remedies avail them with more choices.
If they insist upon the transfer, a detinue action will grant them an option for specific delivery to repossess the embryos.
Alternatively, they may bring a bailment claim. Then the bailee (the RTC) is under an obligation to return the embryos to the bailor (the donors) upon the termination of the bailment, which grants donors repossession.
If transferral is no longer practicable (because, say, the embryo is no longer viable owing to lengthy legal proceedings , the property tort of conversion enables them to sue for damages for loss arising from the RTC’s refusal to transfer.
As seen, the reluctance of our law to recognise property in embryos causes various deficiencies. It is therefore high time for our law to reconceptualise their status and confer a proprietary interest in them. It is hard to see why modern biotechnological issues should be governed by rules laid down in the 17th century – an era even before the Industrial Revolution!
With proprietary recognition, the courts can apply property law concepts in embryo disputes. As seen in York, this helps fill in gaps using ordinary contractual rules and surmounts the problems arising from solely relying on contract law.
But for now, frozen embryos are not yet recognised as property. Contract remains the golden tool governing the relationship between parties. So as any sensible lawyer would advise, always read the IVF service contract (and indeed, any other documents) thoroughly before signing.