Reproductive Assistance and Contract Law (or, who gets the embryo?)

In a unique decision out of the Ontario Superior Court of Justice, the parties to the matter were a divorced couple who disagreed about the use of frozen embryo that had been cultured prior to their separation.

In S.H. v. D.H., 2018 ONSC 4506 the parties had contracted with a medical provider in the United States to have a number of embryos cultured from the sperm and eggs of third party donors.  Notwithstanding the illegality of buying and selling gametes in Canada under the Assisted Human Reproduction Act, S.C. 2004, c.2, the parties paid $11,500 USD for four embryos to be created and transferred to the ISIS Regional Fertility Centre in Ontario.  Of the four embryos, two were considered non-viable, and one was successfully implanted in the Wife and grew to term, becoming the parties’ only child.

Six years after the parties had separated, and subsequent to their divorce, the Wife wished to use the remaining embryo in an attempt to have another child.  The Husband opposed this, instead seeking to have the embryo donated for research.  As the matter could not be resolved between the parties, they remitted the matter to the Court.

Notwithstanding the biological component to the matter, as embryo’s have historically been considered property, the Court instead addressed the matter by way of contract law to determine the disposition of the embryo.  Under the contract that the parties had signed with ISIS the Wife was considered the “patient” and her wishes in respect of the embryo were considered to govern as per the contract.

While the case in question is rather simple in its analysis and result, it leaves open a number of questions that the Court was not asked to answer, but are nonetheless relevant for consideration.  For instance, as the embryo did not contain biological material belonging to the Husband, it was accepted that the Husband was not required to pay child support for any child that might result from the embryo.  However, the child born from the first embryo was biological sibling of the remaining embryo.  Therefore, were the Wife to be successful with the implantation of the second embryo, she would have two children, both of whom were biological siblings, but only the eldest would be considered a Child of the Marriage warranting child support.

Further, the determination that the Husband would not have to pay child support was predicated solely on the basis of the embryo not having any biological material from the Husband.  The question then arises:  if the embryo contained biological material from the Husband, would he have been required to pay child support, notwithstanding his opposition to the use of the embryo?

This leads to the primary question of whether the Court would have continued to view this matter through the lense of “contract law” had the embryo contained biological material belonging to the Husband.  The Husband did cite a case from the UK in which it was held that a husband had the right to withdraw his consent to the use of the embryos created with his sperm.  However, the Court in the present case held that this did not apply as the Husband in the present case did not contribute sperm to the embryo.  As a result, there does not appear to be a clear answer in Canada as to whether a husband who has donated his sperm to the creation of an in vitro embryo has to the right to prevent the use of the embryo in the event of a divorce from the Wife who has contributed the egg to the embryo.  While the Court in the present case did cite the right of people to make decisions of fundamental importance affecting their private lives, such as having children, the Court, in this case, was not required to answer the question of what happens when that decision affecting a person’s private life seeks to use genetic material from, and have a significant impact on the life and finances of, another person.

These are all important considerations that will need to be answered by these Courts, if not parliament or the provincial legislatures as assisted reproduction becomes more common place and these issue begin to arise with more frequency.  However, until such time as the matters are put before the Courts, Canadians seeking reproductive help would be best prepared by creating private agreements between themselves to determine what rights and obligations they will have.

If you require assistance in preparing agreements with your partner for use in the face of entering into reproductive assistance, the lawyers at Mincher Koeman LLP can help you.  Give us a call at (403) 910-3000, or email us at reception@mincherkoeman.com.