Court Rules that Embryo is “Property” and Awards Ownership to Former Wife


By Written on behalf of Campbell Bader LLP

In a recent case, an Ontario court grappled with a novel issue when it was asked to settle a dispute over a fertilized embryo between a now-divorced couple; the embryo was not biologically related to either party, but had rather been purchased from an American company during the course of the parties’ marriage. The court ultimately characterized the embryo as property and, by applying contract law principles to the case, awarded its custody to the wife.

The Facts

The former husband and wife asked the court to decide which of them was the legal owner of a fertilized embryo.

The couple had married in 2009 and, in 2012, both the wife and husband entered into a contract with a Georgia company to purchase donated eggs and sperm for $11,500 U.S. dollars. Neither party had a biological connection to the purchased embryos.

Though four embryos were created, only two survived; they were shipped to a fertility clinic in Ontario and one was successfully implanted into the wife. She gave birth to the parties’ son in late 2012. However, the couple separated soon after and ultimately divorced; the divorce was described as “acrimonious”.

The motion in the case was brought by the wife, who asked the court to declare her the owner of the remaining embryo, based on the contents of the contracts signed by the parties in 2011. She also sought an order that would allow the fertility clinic to implant her with the embryo. The husband contested the application, arguing that he did not consent to the use of the embryo and would prefer that it be donated.

The Parties’ Positions

Both parties centred their arguments around the language found in the relevant contracts they had entered into with the two fertility clinics.

The wife contended that the contract with the Ontario clinic should be upheld; it contained a clause stating that the fertility clinic must respect “the patient’s wishes” in the event of divorce. Under the contract, the wife was identified as “the patient”. She also argued that the embryo was of particular importance as it would provide a biological family connection to the parties’ son. Additionally, she submitted that while a doctor’s letter stated she was physically capable of carrying a pregnancy to term, she was 48 years old and time was of the essence.

The husband argued that the contract with the Georgia company should prevail. That contract contained a clause in which the parties agreed to donate the embryos in the event that they were unable to agree. The contract also stated that in the event of separation or divorce, the decision would be left to a court and the parties’ wishes would not be a deciding factor in the outcome. The husband further argued that he had paid the entire price for the embryos and they were therefore his property. Finally, the husband argued that the wife would be financially incapable of handling another child.

The Decision

The court began its analysis by emphasizing the novelty of this legal issue and stating that “[t]here is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos”.

The court agreed to treat the embryo as property as the parties had agreed to under both contracts. It briefly considered the separation of property scheme under the Family Law Act, noting that while such provisions would normally apply in this case “[a]s it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions”.

The court additionally acknowledged that it is illegal to purchase and sell gametes and embryos under the Assisted Human Reproduction Act. However, the court chose not to deal with the implication of this legislation on the legality of the contract, stating that this issue had not been argued by either party and it would not be dealing with the conflict of laws issue arising on the facts.

Ultimately, the court’s decision turned on an interpretation of contracts analysis. After examining the parties’ intentions and the language of the contracts, the court awarded ownership of the embryo to the wife based on the Ontario contract that required the fertility clinic to “respect the patient’s wishes”.

However, the court also acknowledged that the husband had paid the purchase price of the embryos and thus ordered the wife to reimburse the husband for his half interest in the embryo, which came to $1,438 U.S. dollars.

Further Implications

This case is novel because the parties had no biological connection to the embryo. While the Assisted Human Reproduction Act may normally apply to the sale of embryos, it was not applied to this case. The court also acknowledged that the normal separation of property scheme under the Family Law Act could not be applied to an embryo. In its final conclusion, the court said plainly: “[t]his court can only interpret the existing law. Therefore, unless legislative changes are made, this court must decide disputes such as this one based upon the agreements signed and the parties’ intentions”.

Get Advice

If you have questions about this case or about other family law issues stemming from separation or divorce, contact the offices of Campbell Bader LLP. We regularly advise parties on a wide range of family law issues, including novel and emerging legal issues, as well as providing a full range of other legal services. Contact us online or by phone at 905 828 2247 to schedule a consultation.


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