Court Asked To Determine Who Owns A Frozen Embryo Following A Divorce


The division of property can be a complicated process to go through during a separation or divorce. Of course, anything involving children can also complicate the process. Sometimes, both property and issues around children can come together to make matters even more complicated. This was the case in a trial recently decided by the Court of Appeal for Ontario.

The marriage and the embryo

The couple got married in 2009. Sometime in 2012 they contracted with American company to purchase donated egg and sperm in order to help them have a child. The egg and sperm cost the couple $11,500. This resulted in the creation of four embryos. Two of these embryos were viable. These embryos were frozen and sent to a lab in Canada. One of the embryos was implanted into the mother, while the other embryo was kept in storage.

Following the birth of their child, the mother and father soon separated, eventually divorcing. After some time the mother wished to have another child, and wanted to use the remaining frozen embryo to do so. However, the father objected to this and the matter went to court.

The original trial

During the trial the judge found that the issue had to be decided by either property law or contract law. After some analysis, the judge found that the contract between he facility storing the embryo and the parents should determine to whom the embryo belonged. The contract stated the embryo was the property of the mother, which meant the mother was allowed to use it to have a child.  

The father appeals

The father appealed the trial judge’s decision, and the court allowed the appeal, finding the trial judge failed to take all relevant law into account. The court wrote,

“This decision turns on the interpretation and application of the governing legislation and regulations. In some jurisdictions, where the state has not regulated in the field of reproductive technology, private law contract principles apply.[1] In Canada, however, Parliament has imposed a consent-based, rather than a contract-based, model through legislation and regulation.”

The court noted that the trial judge had ignored the Assisted Human Reproduction Act, which contains language prohibiting the use “of an in vitro embryo for any purpose without regulation-compliant written consent.” The Act also states that the people who obtain an embryo are considered the embryo’s donors, and that their approval is needed in order for the embryo to be used. In this case, the father is a donor, and the embryo could not be used without his consent. Even though the father signed a contract with the storage facility, granting ownership of the embryo to the mother, he was not legally permitted to contract out of his rights.

To speak with an experienced Windsor lawyer about complex property division, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.

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