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In a precedent-setting decision, a Superior Court judge in Sudbury has found that a woman can use a frozen embryo purchased with her husband, while married, despite the man’s objections following their divorce.

What Happened?

The parties were childhood friends who, in 2009, decided to get married and have children. In February 2012, they purchased donated eggs and sperm from a clinic in the U.S. Two viable embryos were created, neither of which were biologically related to either party. One embryo was implanted in the wife soon after it was created.

The parties signed several agreements (one with a fertility clinic in Ontario where the embryos were stored and two with clinics in Georgia where the embryos were purchased) outlining what would happen with the embryos in the event of a divorce.

In early December 2012, the wife gave birth to a son. By mid-December, the parties separated and an acrimonious divorce process began.

The wife filed a motion seeking to use the second embryo that was in storage.

The Parties’ Positions

The Wife

The wife argued that the contract the parties had signed with the Ontario clinic, which stated that the clinic will respect “the patient’s wishes” should be followed in the event of divorce. The contract identified the wife as “the patient”.

In addition, the wife further argued that there is no need to balance any competing rights in this case since the husband has no biological connection to the embryo. She also noted that she would not be seeking any child support from him.

The wife argued that, moreover, the embryo had particular importance to her as it would be the only real biological family connection that the parties’ son would have. She also noted that time is of the essence since she is 48 and provided a doctor’s letter stating that she is physically capable of carrying a pregnancy to term.

The Husband

The husband argued that the Ontario contract stated that the embryos would be treated as property, and further argued that since had paid for the embryo purchase entirely on his own, the embryo was his property.

He also noted that a sibling would not be the in the son’s best interests, since the wife “refuses to be gainfully employed” and the majority of the support for the son would be imposed on the husband.

The Law on Embryo Use in Canada

Justice Del Frate noted that this was a novel issue for the court to consider, stating:

There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

Justice Del Frate did consider an earlier British Columbia decision which involved a dispute over gametes in “sperm straws”. In that case, the court found that the straws were property and they were subsequently divided between the parties.

The Family Law Act outlines a comprehensive scheme for equalizing and determining the ownership of marital assets. Section 14(a) of the FLA states that ““the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants”. Here, both parties were listed on the relevant contracts and there was a clear intention that they would jointly own the embryos, irrespective of the fact that only the husband had paid for them.

While the wife and husband in this dispute did not contest that the remaining embryo be treated as property, the issue was there was only one embryo and it could not be divided as the straws were in the B.C. case. Since it is not possible to simply split the embryo, and the embryo can likewise not be sold with the profits divided between the parties (it is illegal to sell gametes and embryos in Canada), ownership must be determined based on the language in the relevant contracts.

The Contracts in Question

As such, Justice Del Frate placed a great deal of weight on what the couple had agreed to when they signed the contracts with the two fertility clinics, noting that:

In my view, the parties knew what they were agreeing to at the time of signing the agreements. It would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to. One cannot apply buyer’s remorse.

Justice Del Frate noted that both neither party had argued that they had been subject to undue influence, mistake, misrepresentation or anything else that could be used to argue that the agreements were not legally binding.

Justice Del Frate noted that in the Ontario contract, the husband and wife had agreed that in the event of a separation or divorce, the clinic would honour “the patient’s wishes” (i.e. that of the wife).  The wife has elected to keep the embryo to attempt another implantation. As such, the judge concluded that the embryo is to be released to the wife.

The wife was ordered to pay the husband for his share of value in the embryo (just over $1,400 USD).

Reactions to the Decision

The decision has caught the attention of those in the legal and bioethics fields. Margaret Somerville, a professor of bioethics who spent four decades teaching at McGill University told the National Post that this is an instance of treating a human being like a product or a “things” rather than as a person. She hopes that “…in the future, more senior courts…would say, children are not products to be governed under contract”.

Kerry Bowman, a bioethicist at the University of Toronto told CBC News that he wonders whether consent forms are the best way to make decisions in complex, emotional cases involving matters such as this one, noting “true consent from an ethical point of view would be a deep, deep reflection on some of these questions”.

We will continue to follow caselaw as courts will undoubtedly will deal with novel issues such as this one going forward.

In the meantime, if you have questions about your options for future parenthood, including adoption, or have questions about the most complex matters stemming from separation or divorce contact Gelman & Associates. Our lawyers provide exceptional legal guidance and advice to parents seeking information,  and can help facilitate the expansion of your family. With six offices conveniently located throughout Aurora, Barrie, Downtown Toronto, Mississauga North York and Scarborough, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.

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