Nelligan O’Brien Payne gratefully acknowledges the contribution of Alaina Woolfrey, Student-at-Law in writing this blog post.
In July 2018, the Superior Court of Justice released its decision in S.H. v. D.H., wherein it was held that the wife of a separated couple should be permitted access to the last remaining embryo owned by the couple, which was created from donated sperm and eggs.
In other words, neither party had any genetic connection to the embryo in question. In reaching this decision, the Court relied on the contracts signed by the parties at the Fertility Clinics, effectively determining the issue through the principles of contract law and property law. You can read our earlier blog about the case here.
On May 31, 2019, the Ontario Court of Appeal has reversed this decision, primarily on the grounds that the lower court failed to consider the Consent Regulations under the Assisted Human Reproduction Act which clearly set out that consent to the use of an embryo can be withdrawn by a donor at any time prior to the embryo being implanted. Pursuant to the Court of Appeal, unless both parties agree to the use of the embryo, neither party will be permitted to use it.
Section 8(3) of the Consent Regulations states that “No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.” As it relates to this case, the legal “donor” is defined as:
“the couple who are spouses or common-law partners at the time the in vitro embryo is created, regardless of the source of the human reproductive material used to create the embryo”
As Justice Fairburn of the Court of Appeal wrote in his reasoning, Parliament “has imposed a consent-based, rather than a contract-based, model through legislation and regulation.” Therefore, consent should have been the foundation of the decision regarding whether or not the ex-wife could use the embryo for her own reproductive purposes.
Why then did the lower court not address the Consent Regulations in their decision? Simply put, neither party referenced the Consent Regulations in their arguments.