Who's Embryo is it Anyway?

An embryo with no genetic link to parties becomes subject to Ontario Court’s ruling

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The recent Ontario family law case, H. (S.) v. H. (D)., 2018 ONSC 4506, dealt with the question of “Who’s embryo is it anyway?”, and apparently it was the first time an embryo with no genetic link to the parties was subject to a Court’s ruling.

H. (S). v. H. (D). involved a married couple that had purchased donated eggs and sperm from MyEggBank in Georgia.  Four embryos were created, two of which were deemed unviable and the remaining two were shipped to a fertility clinic in Ontario.

The fertility clinic in Ontario implanted one of the two viable embryos in the Wife.  The Wife subsequently gave birth to the parties’ son, meanwhile, the second embryo remained frozen at the fertility clinic.

Shortly after the birth of their son, the parties separated and a bitter divorce soon followed.  The Wife brought a motion for an order naming her the owner of the second embryo so that the fertility clinic could implant it in her. She argued that time was of the essence because she was 48 years of age, but the Husband disagreed with the Wife’s plan to have a second child and wanted the embryo donated instead. 

The parties agreed that the embryo should be treated as property and divided as such, but the problem was there was only one embryo.  Unlike property, the embryo could not be “split”, nor could it be sold and the proceeds divided.  Not only that, but it is illegal to purchase and sell embryos in Canada, according to the Assisted Human Reproduction Act, a topic which I’ve written about previously in the blog post “Surrogacy in Canada”. 

The Ontario Superior Court of Justice relied on the law of contracts in reaching its decision. The parties had signed several contracts involving the embryos, in particular, the contract with the Ontario fertility clinic provided that in the event of separation, the patient’s (the Wife’s) wishes were to be respected.  Whereas, the contract with the Georgia company provided that in the event of a divorce, “the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court”.   

The Court determined that the parties knew what they were agreeing to when they signed the contracts dealing with the embryos, and therefore the Wife’s motion was granted releasing the embryo to her.  The Court also found that the Husband was entitled to reimbursement for his financial interest in the embryo because he payed the entire purchase price of the embryos.  The Court determined that because the parties had paid $11,500 US to create four jointly owned embryos, each embryo was therefore worth $2,875 US, which meant the Husband was entitled to $1,438 US which represented his ½ interest in the remaining embryo.

So, to answer the question: “Who’s embryo is it anyway?” The answer appears to be: “Refer to the contract.”.