Technological advances in helping people become pregnant have provided many people who may not have been able to start a family the ability to do so. With these types of advances come challenging questions for the courts, though. In a recent decision by the Ontario Court of Appeal, the court overturned a 2018 Ontario Superior Court of Justice decision which had ruled that a mother should be awarded custody of frozen embryos after the ending of a marriage.

The relationship

The parties were married in February 2009. Three years later they paid $11,500 to an American firm for the purchase of donated egg and sperm. The egg and sperm resulted in the creation of four embryos. Of these, two were found to be unviable and were destroyed. Of the remaining two, one was implanted in the mother, and one was stored at a health center in Ontario. The mother’s pregnancy resulted in a son.

The couple separated in December 2012, shortly after the birth of their son. Following the separation the mother sought to gain possession of the second embryo so she could have another child. She had promised not to pursue child support from the father, but he refused to offer his consent.

The trial judge considered whether the issue should be resolved through property law or contract law. Ultimately, it held that a contract with the health centre in Ontario, which “gave” the embryo to the mother should be upheld. As a result, the mother was free to have it implanted in her.

The appeal

The father appealed this decision. The court began its analysis by stating that “neither contract nor property law principles govern this case.” The court acknowledged the difficult decision faced by the trial judge but pointed out that the Assisted Human Reproduction Act should be considered in this case. The Act states that a donor’s written consent is necessary, and it “prohibits the use of an in vitro embryo for any purpose without regulation-compliant written consent.” The court found that spouses who obtain embryos are considered “donors” even if neither of them has a biological connection to the embryo. As a result, the court ruled the father’s consent was needed in order for the embryo to be used. In its decision, it wrote, “(the father’s) unmitigated right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive in this case.”

The court also held that the husband was not able to contract out of this right. Even though he signed a contract giving ownership of the embryo to the mother, he actually had no legal ability to do so.

The team at Borden Family Lawyers has close to 20 years of experience in all areas of family law. We understand how family law has changed over the years and represent our clients in a range of issues, explaining the process of their circumstances and help them prepare for all available options. We can be reached by phone at 905-576-6090 or online. Please don’t forget to ask about our bundled services and flat fees.