Science has afforded many couples the opportunity to have children when they otherwise may have not been able to do so. But the law can take some time to catch up to scientific progress. Such was the case in a recent decision before the Ontario Superior Court of Justice where the court had to determine which parent should be awarded custody of a purchased embryo.

Purchasing and storing the embryos

The couple were married on February 2, 2009. On February 1, 2012 they purchased donated eggs and sperm for $11,500 USD from a company in Georgia. From this, four embryos were created, two of which were determined to be unviable and destroyed. Neither party has a biological connection to the embryos.

The remaining two embryos were shipped to a health centre in Mississauga. One was implanted into the mother, and on December 9, 2012, she gave birth to the parties’ son. The couple separated on December 18, 2012, which led to a divorce.

The motion before the court arose when the mother sought to gain possession of the second embryo, which remained in storage at the health centre at the time of the trial. She wanted to use the embryo, and promised not to ask the father for child support in the event that a child is born from it. Meanwhile, the husband wanted to have the embryo donated.

A case of competing contracts

The issue at trial boiled down to two competing contracts – one with the health centre storing the remaining embryo, and one with the US company that provided it. Each contract contained provisions as to what would be done with extra embryos.

The Ontario contract stated that if the couple separated or divorced, the wishes of the “patient,” which was defined as the mother in this case, would be followed. The mother asked the court to recognize the Ontario contract as the one to be enforced. She added that the embryo contained the same genes as those found in the couple’s son, and that he would benefit from having a biological sibling.

However, the contract with the US company provided the couple with options on how embryos should be disposed of in the event the couple would be unable to agree. In this case, the couple indicated they would have liked to donate the embryos. The contract went on to state that should the couple divorce or separate, they were no longer entitled to make any decisions, and that it should be left to the courts to determine what would happen to any embryos remaining. In arguing for this contract to prevail, the husband pointed out that he paid for the embryos, and as such they were his property.

The court’s analysis

The court was quick to point out that there was no law governing how to dispose of embryos when neither party has a biological connection to them. There is common law from a 2012 British Columbia decision, which found sperm straws to be property. Furthermore, the couple agreed to treat the embryos as property when they purchased them. At trial, both parents agreed the embryo should be treated as property.

The problem, of course, is that a single embryo cannot be divided, nor could it be sold in order to split the proceeds.

The court determined the Ontario contract, giving the embryo to the mother, should be the contract at play. Not only does the Ontario contract state the health centre “shall” respect the patient’s wishes, but the US contract also provided for the couple’s wishes to be removed from the decision making process in the event of a separation or divorce.

Despite there being laws prohibiting the sale of embryos, the court recognized that the husband had paid for them. In awarding the remaining embryo to the mother, the court ordered her to pay for one-half of the cost of one embryo, amounting to $1,438 USD.

Borden Family Law has been helping clients with family law needs for over 17 years. Our lawyers have worked on cases covering all areas of family law, including separation, divorce, and the division of property. Our experienced and highly knowledgeable team of lawyers can provide you with the legal support you need when going through a divorce or separation. Please call us at 905-597-6090 or reach us online to talk today. Please remember to ask about our bundled services and flat fees.