The legal status of human embryos has, internationally, been a contested and ethically challenging topic. Other jurisdictions have grappled with this issue more than Canada, and have at times found embryos to possess a unique interim status somewhere between a person and property. Until recently, Canadian cases, though few, were based predominantly upon the status of sperm.
In S.H. v. D.H., an Ontario Court recently provided clarity as to the legal status of embryos, and specifically how frozen embryos ought to be treated in the event of divorce. In this case, a heterosexual married couple had previously purchased embryos from a facility in the United States and shipped two embryos to a clinic in Ontario. The couple signed agreements with both organizations. Upon their divorce three years later, the couple had one son and one remaining frozen embryo.
The Ontario clinic had the couple complete paperwork expressing their direction in the event of a divorce. The couple had decided that, in the event of a divorce, the wife’s preferences would prevail. In the contract with the US facility, the parties selected donation as their desired disposition option and that “In the event of divorce, separation, or marriage dissolution we understand 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 [of] competent jurisdiction.”
As part of their divorce proceedings, the wife sought exclusive rights to the embryo. She argued that this embryo would be the only biological connection her son would have and that she would not seek child support from her ex-spouse. She also relied upon the Ontario agreement in which the husband had abdicated his rights to decide what happens with any remaining embryos.
The husband requested that the embryo be donated in accordance with the US contract. He did not think a sibling would be in their existing child’s best interests. He also argued that the wife did not have sufficient means to financially support the child and he was concerned that support would subsequently be sought from him.
The best interests of their existing son were not relevant to the decision and, it was held, an analysis into the child’s interests “would be highly speculative and potentially discriminatory.” Also the financial means of the wife were considered irrelevant. Such an approach would interfere with individuals’ rights to make decisions of fundamental importance affecting their private lives, such as having (or not having) children.
The Court relied upon the 2012 case of J.C.M. v. A.N.A. to consider how reproductive materials should be divided upon dissolution of marriage. In that case, sperm straws were distributed equally between a divorcing lesbian couple in accordance with the division of property regime of the Family Law Act (BC). That case helped lay the groundwork in Canada to recognize reproductive materials as property.
In S.H. v. D.H., decided on July 25, 2018, it was determined that the parties knew what they were agreeing to when they signed the contracts and thus this matter should be dealt with in terms of contract law principles. The judge stated that the court “must decide disputes such as this one based upon the agreements signed and the parties’ intentions”. Given that the Ontario agreement contained a specific direction as to how the parties should proceed in the event of divorce, that the wife’s wishes shall be respected, the wife became the owner of the remaining embryo. And, because the embryo was recognized as property, the husband was awarded $1,438 USD, which represented his half of the embryo (as the couple originally paid $11,500 for four embryos, although two were not viable). This case serves as an important reminder that consent forms and agreements signed in fertility clinics may be treated as binding contracts.
In this case, neither the husband nor wife was genetically related to the embryo in question. It is plausible that a case would be distinguishable if the dispute involved embryos having a genetic connection to one or both spouses. The judge commented on a case referred to by counsel where a man in Europe was entitled to withdraw his consent to use of his sperm, noting that the “case is readily distinguishable” because the man “had a biological connection to the disputed embryo” and it was a different legislative context. Where disputes over frozen embryos have arisen outside Canada, some courts have been reluctant to force a person to procreate, even if they signed a contract deferring future disposition decisions to a spouse.
As a result of this decision, it can be expressly concluded that embryos in Ontario are legally considered property. And it can be reasonably concluded that ova would also be considered property.
The development of case law finding reproductive material to be property poses an interesting contrast to the Assisted Human Reproduction Act, which prohibits the purchase of sperm, ova and embryos. They are legally property, yet cannot be transacted like other forms of property in Canada.
Thus, embryos maintain a unique legal status after all.
About the authors
Lisa Feldstein, Lisa Feldstein Law Office, is a health lawyer and adjunct professor at York University (Health Care Law).
Priya Somascanthan is a student-at-law at Lisa Feldstein Law Office.
 J.C.M. v. A.N.A.,  BCJ No. 802; C.C. v. A.W., 2005 ABQB 290 (CanLII); Lam v. University of British Columbia, 2015 BCCA 2 (CanLII)
 R v. Morgentaler,  1 SCR 30.
 Family Law Act, [SBC 2011] CHAPTER 25.
 Supra note 2 at para 31.
 Assisted Human Reproduction Act, SC 2004, c.2
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