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What will happen to Non-Biological Embryos after a Separation or Divorce? (CASELAW UPDATE)

Posted on December 5, 2018

If you have purchased or received donated embryos as a married couple, are you wondering what will happen to any remaining embryos if you and your partner separate or get a divorce?

An Ontario Court was recently presented with this issue in S. H. v. D.H., 2018 ONSC 4506, where the Wife brought a motion to declare her the owner of an embryo that was purchased by the parties during their marriage. The Wife wanted to implant the remaining embryo, while the Husband argued that it should be donated.

Judge deciding on a case of embryos and divorceDespite the fact that it is illegal to purchase and sell gametes and embryos in Canada, the Court upheld the validity of the contracts that the parties signed for the purchase. The contracts were clear that the embryos were to be treated as property in the event of a dispute.

The Court was unable to determine how to split the embryos under the equalization scheme set out in the Family Law Act due to the fact that there was only one embryo remaining that could not be split nor sold. The Court considered the case of J.C.M. v. A.N.A., 2012 BCSC 584, where sperm straws were ordered to be divided between the parties, with one party receiving 7 straws and the other receiving 6 straws and $125.00 for her interest in one-half straw.

What was the eventual outcome?

Ultimately, the Court looked to the provisions of the contracts to determine the outcome. While there were three contracts, two of which were signed in the United States, the Ontario contract explicitly stated that in the event of a divorce or separation, the patient’s wishes were to be respected.

The contract defined “the patient” as the Wife and so the Court held that the embryo was to be released to the Wife for her use. In keeping with the view that the embryo is considered property, the Husband was reimbursed for the value of his interest in half of the remaining embryo.

In arriving at this decision, the Court refused to consider the best interests of the parties’ son, the Wife’s financial means to support another child, or the chances of a birth resulting from a future implantation.

This is an interesting precedent for Canadian law as it marks first case in Canada where a Court was asked to consider how to dispose of embryos when neither party has a biological connection to the embryos.

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