It is estimated that around 16 per cent of couples in Canada experience infertility, and more and more people are turning to assisted reproduction to form their families. This can bring with it a whole raft of new legal issues.
A recent precedent-setting case by the Ontario Superior Court of Justice, S.H. v. D.H., looked at what happens to an unused embryo after a couple divorces. In this case, the couple had no biological connection to the embryo.
Which member of the couple should the embryo go to? Or should it be donated?
D.H. and S.H., a married couple, commenced fertility treatment in 2012. They purchased donated eggs and sperm from an egg bank in Georgia, USA, and the fertility process resulted in two viable embryos. These embryos were shipped to a clinic in Mississauga, one embryo was implanted in D.H., and she gave birth to the couple’s son in December 2012.
During this process, the couple signed several agreements at the fertility clinic in Ottawa and the clinic in Georgia.
The couple separated shortly after their son was born, and then later divorced. The dispute before the Superior Court was over what should happen to the remaining embryo, which neither party has a biological connection to.
Who gets the embryo?
D.H. argued that the Ontario contract should be followed. This states that in the event of a divorce, the clinic will respect the patient’s wishes. And since D.H. was the one undergoing the fertility treatment, she is defined as “the patient”. Therefore, D.H. took the position that the Ontario contract should be followed. She wanted to implant the embryo and try for another child.
The Georgia contract, on the other hand, stated that in the event of a divorce that the embryo will be released as directed by order of a court.
S.H. claimed that he paid for the embryos, therefore the remaining embryo was his property. He also argued that it was not in his son’s best interest to have a sibling, given his mother’s limited income. Therefore, he wanted the embryo so that it could be donated.
Justice Del Frate chose to follow the Ontario contract, and ordered that the embryo be released to D.H.
In the decision, he stated: “the parties agreed that the embryos would be treated as property in their contracts with [the fertility clinics] … Accordingly, they must be divided as such.” He added that “as 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.”
He referred to a previous B.C. decision from 2012, J.C.M. v A.N.A., where the court treated sperm straws as “property” in a similar dispute over biological material. In that case, the sperm came from a donor as well.
To address S.H.’s claims, he calculated a monetary value for the remaining embryo, based on what the couple had paid the Georgia clinic. He arrived at a total of $2,875 per embryo, so S.H.’s interest therefore comes to half that: $1,438.
Courts have not dealt with many cases like this one, but it is expected that issues around embryos and biological material will only increase.
There is clearly a demand for assisted reproduction, which can lead to legal disputes if there is a breakdown in a relationship.
You can listen to Erin Lepine, leader of our Fertility Law Team, discuss this case on CBC’s All in a Day here.
If you are considering fertility treatment and want advice on the contracts you are being asked to sign, it is best to consult a fertility lawyer. You can contact our Fertility Law Team or our Family Law Group.