In 1978, the first in-vitro fertilization (IVF) baby was born. Since that time, IVF rates in Canada and around the world have skyrocketed. People and families are increasingly turning to assisted reproductive technologies to assist them in achieving pregnancy. The advent of these technologies has been revolutionary for people and families facing infertility issues, and for single people and queer families who would otherwise struggle to have children on their own.
With advances in technology and research, a fast-growing market in reproductive medicine is egg and embryo freezing. One reason, among many, for freezing eggs and embryos, is that many women are delaying having children in favour of launching or growing their careers. Fertility clinics have been known to advertise that freezing your eggs will provide an “insurance plan” for a pregnancy down the road. While not guaranteed, there is no question that this option has provided some relief to women who do not want to have to choose between their careers and having children.
The use of frozen embryos is an issue that has become more commonplace for separating spouses, and for family lawyers.
In the 2019 case of S.H. v D.H., the Ontario Court of Appeal grappled with the tension between contract law, property law, and health law. In this case, a married couple purchased donated eggs and sperm in the United States (note: the Assisted Human Reproduction Act in Canada prohibits the purchase of gametes in Canada). They contracted with an American lab, and used IVF to create four embryos, two of which were viable. Neither party had a biological connection to the embryos. The embryos were frozen using a process called cryopreservation. One of the embryos was sent to a lab in Ontario.
The parties signed a contract with the Ontario fertility clinic stating that, in the event of separation, the wife’s wishes were to be respected. The wife was implanted, and a child was born. Shortly thereafter, the parties separated. The wife sought to have the remaining embryo implanted in her so that the parties’ child would have a full biological sibling. The wife said she would not seek any form of child support from the husband. The husband did not agree and stated that he was withdrawing his prior consent.
The motion judge applied principles of contract and property law and concluded that the embryo should be released to the wife for her use and the husband should be reimbursed for the cost of purchasing those gametes. The parties paid $11,500 USD to create four jointly owned embryos. Each embryo was therefore worth $2,875 USD. The wife’s interest in half of the remaining embryo therefore entitled him to an award in the amount of $1,438 USD. The husband appealed.
The Court of Appeal allowed the appeal and concluded that the husband had an unmitigated right to withdraw his consent, which prevailed over any contractual agreement to the contrary. The wife could not use the embryo. The Court held that neither contract nor property law could govern. Instead, the decision turned on the interpretation and application of governing legislation and regulations.
In Canada, Parliament has imposed a consent-based rather than a contract-based model through legislation and regulations, and under those regulations and legislation set out in the Assisted Human Reproduction Act (AHRA), and the Assisted Human Reproduction (Section 8 Consent) Regulations (Consent Regulations) there is a prohibition against the use of an in vitro embryo for any purpose without regulation compliant written consent.
Section 10(1)(b) of the Consent Regulation requires that the term “donor” include a couple who are spouses at the time that the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo. Section 14(3) of the Consent Regulations provides that if the donor is a couple, either spouse may withdraw consent before the embryo is used.
Together, these provisions meant that, despite having contracted in Ontario to permit the wife to unilaterally deal with the embryo according to her wishes, the husband had the right to change his mind such that the contract would be rendered void. And that is exactly what happened. Based on the discussion in the case, the same would have been true if both parties were genetically connected to the embryo. If, however, only one person was genetically connected to the embryo, section 10(3) deems the genetically contributing former spouse the embryo’s sole donor. So, when only one person is genetically connected, we can include terms about those embryos in a separation agreement.
This case has important implications for people who create embryos without the above knowledge and then separate. These can be heartbreaking consultations, especially when the client is a woman who froze embryos a decade prior, rather than eggs and has since been medically advised that she is no longer able to produce eggs.
Lest we sound like pessimistic lawyers, it’s worth considering freezing eggs when you go to freeze embryos. Separation statistics do not lie, and neither do fertility statistics. Save yourself the heartbreak and ask about egg freezing at your embryo freezing appointment.
About the authors
Emma Katz is a Senior associate with Kelly D. Jordan Family Law. She practices in all areas of family and fertility law.
Kate Deveau is an associate with Kelly D. Jordan Family Law. She practices in all areas of family law, including representing children through her appointment to the Personal Rights Panel of the Office of the Children’s Lawyer.
 Assisted Human Reproduction Act, S.C. 2004 c. 2.
 S.H. v D.H., 2018 ONSC 4506.
 S.H. v D.H., 2019 ONCA 454.
 Assisted Human Reproduction (Section 8 Consent) Regulations, S.O.R./2007-137.
This article was originally published on the OBA Family Law Section’s articles page.