Recent case tackles the question of who owns a viable embryo

Recent case tackles the question of who owns a viable embryo

S.H. v. D.H., 2018 ONSC 4506: This case pertains to a property and contract dispute over a viable embryo. While they were married, the two parties purchased eggs and sperm with which neither of them had a biological connection. The eggs and sperm came from a Georgia company, and an Ontario fertility centre then implanted one of two viable embryos into the wife, which led to the birth of their son. After the parties divorced, the wife wished to implant the second embryo, and the husband disagreed. 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.

The issue for the court to decide was how to deal with each party’s right to the viable embryo.

The wife’s position was that the contract the parties signed with the Ontario fertility clinic stated that the clinic would respect “the patient’s wishes,” which was her, in the event of divorce. She also argued that, because neither party had a biological connection to the embryo, there was no need to balance their competing rights.

The husband’s position was that the Ontario contract stated the embryos would be treated as property and, because he paid the full purchases price of the embryos, they were his property.

The court found that there is no law regarding the disposition of embryos when neither party has a biological connection to them, but that both parties had agreed that the embryos should be legally treated as property. The court referenced the Family Law Act section 14(a), which states that “the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.” Therefore, the embryos should be treated as joint property regardless of the unequal financial contributions and divided as such. Of course, one embryo cannot be split evenly, nor can it be sold and the proceeds divided, because the purchase and sale of gametes and embryos is illegal according to Canada’s Assisted Human Reproduction Act.

Because the property could not be divided evenly, the court ruled that ownership must be determined based on the agreements and the parties’ intentions. The contract with the Ontario fertility clinic provided that in the event of separation, the patient’s (i.e. the wife’s) wishes were to be respected. The contract with the Georgia company provided that in the event of 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”. Both contracts were valid and entered into freely.

Because the Georgia contract stated that such a dispute must be determined by the court, and because the Ontario contract stated that the clinic would respect the wife’s wishes, the Ontario court ruled that the embryo should be released to the wife, who should reimburse the husband for the share of his value of the embryo — $1,438 USD –, as this had been a request for the division of property.

In making its decision, the court referenced M. (J.C.) v. A. (A.N.), 2012 BCSC 584, a case in which a couple purchased 13 sperm straws, which were subsequently divided between them, with the party who received only six receiving $125 for her interest in one-half straw.

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