The use of assisted reproductive technologies to create families is becoming increasingly common in Canada. These technologies create opportunities for individuals or couples who otherwise cannot grow their families.
Some couples who attempt assisted reproduction create multiple embryos with the goal of conceiving a number of genetically related children over time. A couple might use one embryo to conceive a child and keep the remaining embryos for use at a later date.
But what happens when a couple who owns an embryo in storage separate? When a couple separates or divorces in Canada, family law determines how they will divide their assets. Will an embryo be treated like other matrimonial property, or will it be treated differently?
Until recently there was no Canadian law that considered how to dispose of embryos at the end of a marriage or relationship where neither party has a biological relationship to the embryo.
In S.H. v. D.H, a 2018 case, the court considered just this issue. In 2012 a married couple entered into a contract with an American company to purchase donated eggs and sperm for use in assisted reproduction. This standard form contract stated that, if the parties were to divorce or separate, the legal ownership of a stored embryo should be determined in a property settlement.
The couple purchased two embryos and transported them to a fertility center in Mississauga. One of these embryos was used, and the mother gave birth to a son. The other embryo remained in storage to be used if the parties decided to conceive another child. Less than a year later the couple got divorced.
Are Embryos Property? Or Something Else?
In S.H. v. D.H., the court was required to decide whether the embryo in storage should be treated as property, or whether a novel approach for dealing with embryos on separation or divorce was needed.
In Canada, cases involving children require the Court to consider the ‘best interests of the child.’ This means that decisions are made with the ultimate goal of fostering the child's happiness, security, health, and emotional well-being. The father argued that in considering how to dispose of the remaining embryo, the Court should consider the best interests of the couple’s other child. In particular, the father argued that giving the embryo to the mother would result in another baby which would reduce the financial resources available for the couple’s son. The father argued that he would likely bear the financial burden of another child.
The mother, on the other hand, argued that the Court should look to contracts between the couple, the US seller of the embryos and the Canadian fertility center storing the embryo. The US contract stated that the clinic would respect “the patient’s wishes” in the event of divorce, with the mother defined as “the patient.” Further, the mother argued that there is was no need to consider the rights of the father as he had no biological connection to the embryo.
The Court opted to rely on the contract. Without case law on embryos for guidance, the Court looked to a case involving a dispute over gametes (unfertilized reproductive cells). In J.C.M. v A.N.A the Court considered how to divide 13 sperm straws that the couple had purchased.  The Court decided to divide these straws equally, with one party receiving 7 straws and the other receiving 6 straws and $125 to compensate for the extra straw received.
The Court in S.H. v. D.H. followed a similar logic. The Court noted that the embryo could not be divided for practical reasons and that the Assisted Human Reproduction Ac prohibited the Court from selling the embryo and dividing the profits. Instead, the Court looked to what the parties intended when signing the contract with the Ontario fertility center.
The Court looked to the language of the contracts and found that, although both parties had an ownership interest in the embryo, the parties had agreed that it would be up to the mother to decide what she wanted to do with the embryo if the pair separated. The Court awarded her the embryo and required her to compensate her ex-husband for his one-half share.
What does this decision mean for fertility law in Canada?
After this decision, it is clear that embryos are legally property. In future disputes involving the ownership of embryos, courts will look to the contract within which the embryo was purchased and will not consider hypothetical implications on other children.
In S.H. v D.H., the Ontario Court referred to the landmark decision in R. v. Morgentaler. In that case, the Supreme Court of Canada stated clearly that reproductive decisions are a fundamental human right under Canadian law, and that decisions of whether or not to have a child should be made freely and without unwarranted interference. By deciding that ownership over embryos should not be determined by a judge’s interpretation of what is in the best interests of a family, the Ontario Court strengthened the role of reproductive freedom within Canadian Law.
Lawyers at BOYNECLARKE LLP will continue monitoring the Court for any new developments concerning the ownership of human genetic materials. If you have any questions related to this subject or any other area of fertility law, please contact Terrance G. Sheppard.