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Embryos – Consent vs Contract | How do you deal with Genetic Material post separation?

Angela Princewill

August 21, 2020

Some much-needed guidance in the fertility law area concerning genetic material such as Embryos.

INTRO

As reproductive technologies continue to advance and evolve, society is slowly becoming more accepting of the use of such science and technology. Couples resorting to reproductive technologies to make complete their family is becoming increasingly common. However, as the general acceptance of such methods increases, there are certain questions which arise. Questions that in the family law context, can be of significant importance to you or your loved ones. Who has ownership of an embryo? Is an embryo even considered property? What happens after separation or divorce?

In 2018, an Ontario court battled these very questions and attempted to provide some much-needed guidance. In S.H. v. D.H, the courts looked at what happens to am Embryo upon divorce or separation where neither party has a biological connection to the Embryo itself.

FACTS

In 2012, a married couple entered contracts with two companies regarding the use of reproductive technology to conceive a child. The couple purchased two viable Embryos from a facility in Georgia, USA and entered a contract with the company. For the sake of Simplicity, we can refer to this contract as the “Georgia contract”.

The couple then transported the two Embryos to a fertility clinic in Mississauga. Wherein they entered a second contract. We can refer to this contract as the “Ontario Contract”.

On December 9, 2012 DH, the mother gave birth to their first child using one of the Embryo. On December 18, 2012, the couple separated. The question then arose, who owns the second Embryo? Family Law rules and the concept of equalization state that all property between the husband and the wife needs to be split. In that case, what happens to an Embryo?

Parties Position and Decision

The position of the wife is that the Ontario Contract should be enforced. The Ontario contract states the agent (of the fertility clinic) “shall respect the patients wishes”. In the contract, the wife is defined as the patient. Additionally, the wife argued that while she was still capable of carrying a pregnancy according to her doctor, she was 48 years old and time was of the essence. Attempting a natural pregnancy would prove to be time-consuming and risks losing the window to have a second child. The Father argued that he alone paid for the Embryos, they were his property. Further, the father argued that the best interest of the child is at the heart of all family law cases involving children, and that the mother is not self sufficient and would not be able to provide for more than one child.

The Ontario Court ultimately upheld the Ontario contract and provided the mother with use of the Embryo. They based their decision entirely off Contract and Property law by putting significant weight on the language of the contracts. As the Ontario contract stated the patients wishes would be respected, the courts deemed it acceptable to award the Embryo to the Mother with the mother having to pay the cost of the final Embryo to the father.

APPEAL

In 2019 however, the Ontario Court of Appeals decided to overturn the decision of the lower court stating that neither property law nor contract law govern how to effectively dispose of an Embryo.

Instead the Court of Appeals decided that the Reproduction Act (AHRA) and The Assisted Human Reproductions Regulations specifically Section 8 Consent regulations prevail in this matter.

The Court of Appeals decided that a consent-based approach needs to be applied to such situations as opposed to strictly interpreting contracts. As a result, the Court of Appeals allowed the husbands appeal to withdraw his consent to the use of the Embryo by the wife.

The AHRA states in s. 2(d) that “free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies”. S. 8(3) prohibits the use of an in vitro embryo for any purpose without the consent of the “donor”. S. 61 establishes that any prohibited use is a criminal offence under the Criminal Code of Canada

The AHRA and the Consent Regulations provided the husband with the ability to withdraw his consent, and that a contract cannot deprive him of this fundamental right. The entirety of the AHRA places a significant importance on consent throughout the act. It would be counter productive to the act if the prior consent of the husband were irrevocable. Over time, many things change especially with regards to something as delicate as the use of an Embryo that it would be simply wrong to make consent completely irrevocable.

Secondly, under the AHRA, donor status also extends to spouses that did not contribute any genetic material to the creation of the Embryos but were still married at the time the Embryos were created. The act further states that separation or divorce does not change the donor status of a couple with regards to the Embryo where BOTH individuals are genetically connected to the Embryo or are not connected to the Embryo as in this case. The donor status only changes upon divorce or separation if there was only one genetically contributing spouse when the Embryos were created. Thus, despite their divorce, both DH and SH are still considered donors.

The principle of free and informed consent is a fundamental aspect of the AHRA and consent regulations. The language of the contracts makes it clear that consent is free and ongoing and can be revoked by either donor at anytime. Since it is a criminal offence to use genetic material without written consent, an individual should have not the ability to simply contract out of a criminal offense.

In summary, the Court of Appeals concluded that Consent is a fundamental part of AHRA and fertility law in general. That consent is ongoing and revocable and that the contracts do not deprive him of that right. The courts found nothing in the AHRA that deprived SH of his donor status and there was nothing that can extinguish his rights as a donor.

FUTURE IMPLICATIONS?

Although fertility law is still a premature area in Canada, this case has provided some much-needed initial guidance. There are several things to note about this decision. Firstly, Embryo’s can now be treated as legal property that may need to be disposed of on separation or divorce to either party. However, unlike bank accounts and other assets that can be divided equally in a relatively easy fashion under the Family Law Act, dividing an Embryo is simply impossible. Due to this, courts may choose to award significant weight to the language of the contract itself, the intention of the parties while entering the contract or may simply interpret the AHRA. What is clear however, is that one way or another, genetic material such as an Embryo will need to be addressed upon separation or divorce whether that means one party gets to keep it or to neither.

What is clear now is that consent will always supersede the language of contracts. Despite what a contract might state, either party that still retains their donor status will be able to withdraw consent related to the use of their genetic material. Once cannot contract out of revoking consent. Consent no matter the contract, will always be revocable by a donor.

This does not mean that contracts and intention of the parties will be entirely ignored. Simply that they will be secondary. Having a clear and concise contract that details what is to happen to genetic material such an Embryos in various situations is still incredibly important.

It is also worth noting that the Assisted Human Reproduction Act (AHRA Act), which makes the purchase or sale of Embryo’s illegal was not applied in this case. There was also no biological connection to the Embryo. Perhaps if only one party had (or did not have) a biological connection to the Embryo, the case would change drastically. This leaves the question of how the AHRA Act may potentially apply and change things in such cases.

Stefanie Carsley, in an article for The Globe and Mail titled “who has control over frozen Embryo’s after divorce?” made several key points regarding the future of fertility law. She questions whether men and women should have equal say in the control of an Embryo as there are health risk and side effects that women endure by harvesting their eggs that men do not have to experience. She further notes that men can continue to re-produce at a much older age as compared to women. A frozen Embryo may then represent a woman’s best or only chance of conceiving a child.

All in all, S.H. v D.H., at both the lower court level and at the Court of Appeals provides valuable insight into the future of fertility law and possible disposition of genetic material. However, this is still a developing area that parliament needs to legislate further on to provide clear guidelines.

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