Chapter 11 Science and Technology

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 11 Science and Technology

"Science is a way of thinking much more than it is a body of knowledge."

—Carl Sagan

Good lawyers will integrate ideas from both the social and hard sciences, as well as from both horizontal and vertical jurisprudence, to marshal the great arguments of our time.¹ In this chapter, we will discuss genetics, how conformation standards may impact animal health and behaviors, how assisted reproductive technology (ART) may impact contract law and pet custody disputes in the near future, and how patents and ideas from intellectual property law or concepts may be carried over and impact pet custody disputes.

GENETIC TESTING

"Big data" garnered from bioinformatics² may affect human and companion animal futures alike. Modern laboratories focusing on animal welfare are testing animals' deoxyribonucleic acid (DNA). The Veterinary Genetics Laboratory performs tests for various registries, on a contractual basis.³ The Canine Health Information Center (CHIC)⁴ and the Canine Genetic Diseases Network⁵ represent two entities making significant contributions to the health of dogs. CHIC is "a centralized canine health database,"⁶ and its mission is to provide "a source of health information for owners, breeders, and scientists that will assist in breeding healthy dogs."

As the CHIC database grows, it is expected that through genetic testing, useful information will become available and impact future generations of dogs. CHIC's database states that it "will be able to establish whether progeny will be clear, carriers, or affected."⁷ CHIC argues that this is possible because their epidemiological studies enhance their knowledge of health issues affecting all breeds of dogs. Some breeders will not cooperate with the transparent DNA testing for health issues offered by CHIC due to concerns that the test results would negatively impact their breeding program. It will be challenging for CHIC to balance its ambitious mission with the commercial interests of its funders and preferences for conformation standards.⁸

CONFORMATION STANDARDS

Be familiar with the realities of the breeding business rather than believing in a false patina. The subject of conformation standards⁹ has been controversial, particularly in instances referred to as "extreme breeding." In 2008, a well-publicized British Broadcasting Corporation (BBC) documentary by Jemima Harrison, called Pedigree Dogs Exposed, revealed high levels of disability, deformity, and diseases affecting pedigree dogs.¹⁰ Problems identified included Spaniels whose brains were, effectively, too large for their skulls and Boxers suffering from epilepsy. Following the documentary, which received the BBC's "biggest-ever viewer response to a single program," the BBC dropped Crufts, the oldest dog show in the world, after 40 years.¹¹

Zoologist and animal behaviorist, Sir Patrick Bateson of the University of Cambridge (who was knighted in 2003), was invited as a neutral to issue a thought-provoking report.¹² He addressed the subjects of inbreeding, inherited diseases, and the practice of selecting for extreme morphology. Sir Bateson advocated that breeding practices should be changed in order to promote animal health and welfare.

As clients describe to you the animals they care about by breed or even hybrid or mixed breed, it will be easier to picture what unique challenges your client and companion animal may have. They may include that the animal has difficulty breathing, seeing, walking, jumping, or may be living with chronic pain. While a robust and healthy animal might be able to travel back and forth between households with two civil owners, animals with serious health problems may need the stability of a daily routine.

CLONING¹³

After 123 efforts, a dog named Snuppy was cloned in South Korea at Seoul National University in 2005. Snuppy was Time's "Most Amazing Invention" in 2005.¹⁴ The subject of cloned pets¹⁵ is vexing and invites many ethical questions, as these experimental animals may suffer high mortality rates.¹⁶ Genetically engineered and cloned animals are subject to regulations under the Animal Welfare Act¹⁷ because cloned animals are classified as breeding animals and the breeders must be licensed and comply with humane care regulations. Consider a contractual clause prohibiting the cloning of a companion animal; advance bioethics arguments in this regard.

BIOETHICS INVOLVING ANIMALS

Although there is lack of uniformity on just what the term "bioethics"¹⁸ means, the areas of concern generally pertain to broad or narrow ethical questions that relate to biology, medicine, and technology practices. Subjects of interest, from a bioethics perspective, could include cloning and genetic engineering, which is a method used to affect inheritable traits. The notable institution concerned with bioethics involving animals is London's Nuffield Council of Bioethics.¹⁹

The guiding ethical principles for human research on animals are to reduce animal suffering by using what is commonly called "the 3Rs." The 3Rs are Replace, Reduce, and Refine.²⁰

ART Common Law

Science, and the development of intellectual property laws, could affect the relief a party seeks in a pet custody dispute as well as the legality and enforceability of the terms in a family court settlement. A presenting question could be whether the parties to a dispute may clone a family pet.

ART issues will evolve to apply to companion animals. It is likely that there will be similarities and differences as to how ART issues affect humans and companion animals. Unless companion animals gain more status than they have now, ART rights may arise from contractual or ownership rights. Those rights might be divisible from a bundle of rights, as is discussed below in the copyrights section. The right of ownership could be separate from breeding rights and ART rights. It is unknown how advocacy for the welfare of companion animals will shape the emerging jurisprudence. ART law cases pertaining to humans are briefly discussed below, as ART cases involving companion animals have not yet arisen.

In Litowitz v. Litowitz,²¹ a divorcing couple had previously entered into an embryo disposition contract. If the parties could not agree on the use of the frozen embryo, they agreed to petition the court for instructions. Although the trial court and the court of appeals awarded the pre-embryo to the husband, the U.S. Supreme Court instead enforced the parties' cryopreservation agreement.²² The Supreme Court indicated that the fertility clinic could follow its own procedures in dealing with unused embryos consistent with its opinion. The court thereby permitted the pre-embryo to be thawed and to expire at the end of five years.²³ The Litowitz court treated the dispute about a human frozen embryo as a property bailment. It is foreseeable that a similar bailment claims might be made about frozen embryos in a companion animal dispute.

In Davis v. Davis,²⁴ the court distinguished between an implanted fertilized human embryo and one that was not yet implanted. The divorcing husband was given the right not to have another child against his will through in-vitro fertilization (IVF). The court created a new category for pre-embryos. The court said, "pre-embryos are not, strictly speaking, either 'persons' or 'property,' but occupy an interim category²⁵ that entitles them to special respect because of their potential for human life."²⁶ It is noted that companion animals, too, may also be referred to as in an interim category (or words to that effect.)

The Davis court further explained that rather than a true property interest in the pre-embryos, the parents actually had "an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the pre-embryos, within the scope of policy set by law."²⁷

It is unknown how advocacy for the welfare of companion animals will shape the emerging ART jurisprudence. It is possible that methods and principles used in intellectual property law will affect an owner's bundle of rights subject to legal or ethical restraints.

Near-Future Pet ART Issues

As technology continues to evolve and affect reproduction in humans and companion animals alike, there are many issues that could be contractually addressed in pet custody disputes of the future. ART practices could impact the progeny of a companion animal in the following ways: (1) low or very low birth weights; (2) cardiovascular, urogenital, muscular, and skeletal birth defects; (3) susceptibility to disease; (4) reduced reproduction capability; and (5) shorter life expectancy.

For your consideration, here is a list of contractual issues or concerns that may arise:

• Who will have possession of the pet?
• Who owns the cryopreserved eggs?
• Who has a right to consent to a particular ART procedure?
• Does anyone have the right to object on moral grounds if an issue arises with regard to cryopreservation?
• Can the property rights to the pet and the pet's offspring, natural or artificial, or even clone, be divisible?
• What if there is a risk to the female family pet resulting from the harvesting of eggs or health risks for the surrogate?
• Who would pay for the resulting veterinary bills or for loss of an injured animal?
• Could a companion animal be used as a surrogate?
• Where would a companion animal's biological materials be stored?
• What shelf life limitations should apply to a cryopreserved companion animal's eggs or sperm, also known as gametes?²⁸
• Who would have control of the gametes?
• Who will gain custody and the responsibility for offspring?
• Who will have the right to make medical decisions?
• What rights will owners of the donors and surrogates have?
• Who can enforce the contractual rights?

Although at first blush, these issues might seem to only apply in the human realm, and for commercial animals, similar issues with regard to pets and companion animals may arise as pets become more...