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Who Has Control Over Donor Embryos After Separation?

November 21, 2018

The law states that couples have joint control over embryos that are fertilized from their sperm and eggs. This means that either spouse may prevent the other from using the embryos (fertilized eggs).

In the recent decision of S.H. v. D.H. ONSC 2008, the Ontario Superior Court of Justice considered the issue of who has the right to make decisions in relation to donor eggs that were fertilized using donor sperm (i.e. neither spouse had a genetic connection to the embryo). The wife wanted to use the frozen embryos to conceive a second child after the parties’ separation. The husband objected.

The couple signed a contract with the fertility clinic which stated, in the event of a separation, the legal ownership of the embryos would be determined in a property settlement and that the embryos would be released as directed by order of a court. Neither party objected to the embryos being treated as property. The contract also indicated that, in the event of a separation, the parties wanted the fertility clinic to respect the patient’s wishes, (the patient being the wife) as it related to future use of the embryos. The contract further stipulated that any children produced would be legitimate children of the marriage.

The Court in S.H. v. D.H. held that, since the embryos were to be treated as property, the control (or ownership) of the embryos must be determined based on the contract between the parties and the parties’ intentions. The Court applied the law of contract and held that since the couple had agreed in the contract with the fertility clinic that the patient (wife’s) wishes should be respected, the wife should have control over the embryos and be permitted to proceed with the implantation.

The Court also held that the husband had a property interest in the embryos due to his contribution to half the cost, and ordered the wife to compensate the husband for his half of the cost of obtaining the embryo in question.

The Court found that the couple had been informed of the ramifications of signing the contract and that by signing the contract, they indicated they knew what they were agreeing to. It is also relevant that neither party argued undue influence, mistake, misrepresentation, or any other basis to find the contract was not legally binding. What is clear, however, is that neither party had legal advice prior to signing the contract.

This case has significant implications for couples who are entering into contracts with fertility clinics for the use of donor embryos.

If you have questions about your assisted reproduction rights, we are an experienced Toronto Family Law Firm and it would be our pleasure to assist you.

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