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The Ontario Court of Appeal recently overturned a lower court decision that had characterized a divorced couple’s embryo as property and, by applying contract law principles to the case, ultimately awarded its custody to the wife, as we wrote about here.

What Happened?

The couple 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”.

A motion 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.

Lower Court Decision

The trial judge began his analysis by 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 under both contracts. It briefly considered the separation of property scheme under the Family Law Act; while such provisions would normally apply, the court stated that “[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 acknowledged that it was 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 was not 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”. 

Court of Appeal Decision

Unlike the trial judge, the Court of Appeal considered the purpose, statutory interpretation and application of the Assisted Human Reproduction Act  (the “AHRA”) and the Assisted Human Reproduction (Section 8 Consent) Regulations (the “Consent Regulations).

The court stated:

“[N]either contract nor property law principles govern in this case. […] This decision turns on the interpretation and application of the governing legislation and regulations. In some jurisdictions, where the state has not regulated in the field of reproductive technology, private law contract principles apply. In Canada, however, Parliament has imposed a consent-based, rather than a contract-based, model through legislation and regulation.”

Reading the words of the AHRA and the Consent Regulations as a whole, the court concluded that the legislation must be read as permitting either person within a donor couple to withdraw their consent to in vitro embryo use. It found that, regardless of one’s changed marital status, while donor status continues, so too does the right to withdraw consent. 

The court decided that, despite their separation and divorce, the legislation allowed the father to withdraw his consent to the mother’s use of the embryo and that the father’s unmitigated right to withdraw his consent took priority over any prior contractual agreement to the contrary.

As a result, the court allowed the appeal and both parents retained rights to the embryo.

Get Advice 

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.