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Tuesday February 25, 2020

Who Owns the Embryo After Divorce?

Authored by: Terrance G. Sheppard Posted in: Family Law

Interesting legal and ethical issues have arisen with the development of new reproductive technologies. These issues have been the subject of extensive and important debate. Recently, new direction has come from an Ontario court case about how couples may consent and withdraw consent for the use of their embryos.1

In that case, a Husband and Wife couple decided to use in vitro fertilization to have a child. In vitro fertilization “involves the combining of sperm and ova outside of the human body to create embryos that can be later transferred to a uterus to continue developing.” The couple used the services of a reproductive lab, which created four in vitro embryos using reproductive material from two anonymous persons. This meant those embryos were not created from either the Wife’s or Husband’s own reproductive materials. Eventually, one of the embryos was successfully implanted in the Wife and a child was born. The other three embryos were frozen (or “cryopreserved”).

Shortly after the child’s birth, the couple separated and divorced. This is when the legal dispute arose between them. The ex-Wife wanted one of the remaining frozen embryos to be implanted in her so she could have another child. She said she would not seek any form of child support from the ex-Husband. Despite this, the ex-Husband withdrew his consent for the ex-Wife’s implanting any of the remaining embryos.

In court, the ex-Wife said that she and her ex-Husband had entered into an agreement when they originally had the embryos created. She said that agreement gave higher priority to her wishes than those of her ex-Husband. The ex-Husband said that the agreement was invalid because of certain Canadian reproduction laws.2 The court ultimately accepted what was said by the ex-Husband and the ex-Wife was not allowed to implant any of the remaining embryos.

The court found that embryo “donors” under Canadian reproduction laws refers to persons who were married spouses or common-law partners at the time the embryos were created. The “donor” status of the spouse or partner did not depend on whether he or she used their own reproductive biological material to create the embryo. Additionally, even if the donor couple divorced or separated, each person would continue to be a “donor” of the embryo. As a result, the court said that either donor may at any time—even if divorced or separated—withdraw his or her consent for how the embryos may be used by the other donor. Therefore, the ex-Husband was allowed to withdraw his consent for the ex-Wife implanting any of the remaining embryos.

The only exception to this is if one of the donors had contributed reproductive material to the embryo. If that happened, then that person would become the sole donor of the embryo after the donor couple divorced or separated. However, this exception did not apply to the ex-Husband or ex-Wife in this case because neither had used their own reproductive material to create the embryos.

Finally, the court said Canadian reproduction laws make it a crime to use an in vitro embryo without the consent of its donors. Because these laws are meant to prevent crimes, people are not allowed to make agreements that go against those laws. Therefore, even if the ex-Wife and ex-Husband had made an agreement that gave a higher priority to the ex-Wife’s wishes, then that agreement would become invalid and would not be enforced by the courts.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of Fertility Law. If you are seeking legal advice, please call 902-469-9500 to schedule your free 30-minute consultation with Terrance G. Sheppard.


1 SH v. DH, 2019 ONCA 454, 2019 CarswellOnt 8677.

2 Assisted Human Reproduction Act, SC 2004, c 2; Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137.

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