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A few weeks ago, lawyer Dana Du Perron wrote about how tech giants like Apple and Facebook are offering egg freezing as an employee benefit for female employees.

Beyond the employment law realm, egg freezing raises some interesting and controversial fertility law issues as well. With the advent of new fertility and reproductive technologies that are developing more quickly than our legal system can adjust, this area is emerging as an increasingly important one in Canada’s litigation landscape. Nelligan O’Brien Payne is lucky to have Erin Lepine, an associate lawyer who practices in the area of fertility law, to help navigate this largely un-litigated area. Together, Erin and Dana have identified some potential fertility law issues that could arise if Canadian companies start offering egg freezing benefits similar to those now being offered by some American companies to female employees:

  • Where egg freezing is offered as an employee benefit, women who might not even be considering having children yet might freeze their eggs as a sort of ‘insurance’ to ensure that they have healthy eggs available if they wish to have children at some point in the future. When a woman first makes use of the benefit of egg freezing, she may not yet be aware of any fertility restrictions she may have. If and when she decides to use the frozen eggs, she might find that she is unable to get pregnant or carry the baby. This could require the use of a surrogate, which raises a host of other legal issues. Erin discussed some issues surrounding surrogacy in her August 2014 blog post, but some additional considerations include:

    • What rights the surrogate might have to parent the child or otherwise have contact with the child;
    • The surrogate’s requirement to seek appropriate medical treatment or remain insured during the period of the surrogacy arrangement; and
    • Limitations on the surrogate’s activities during the term of the agreement. This could include, for example, limitations on the surrogate’s ability to travel, food restrictions during pregnancy, and other restrictions to the activities of the surrogate. Restrictions of this sort may be included in a surrogacy agreement to protect either the baby or the surrogate (or both), depending on the circumstances.
  • There needs to be a clear agreement on rights and entitlements with respect to the frozen eggs. Some questions that should be considered are:

    • How long will the eggs be preserved?
    • When and how will the eggs be destroyed? 
    • Can the eggs be used for providing instruction in assisted reproduction procedures or other research if the woman decides not to use them?
    • What will happen to the eggs if the donor dies? (e.g. if she is married at the time, can her husband use the eggs with a surrogate to have a baby after the biological mother’s death?
    • What will happen to the eggs if the donor and her spouse separate?

As a relatively new area of law, fertility law often raises more questions than it answers. To date, the single most important general principle to remember when fertility issues arise is that parties engaged in certain types of fertility treatments should have legal advice to ensure that any necessary contracts are put into place to properly govern all aspects of the process.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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