Lorne MacLean, Q.C. and Matt Ostrow of the MacLean Family Law Group were in Vancouver Supreme Court today on a precedent setting frozen embryo custody dispute injunction case. MacLean successfully obtained an injunction on behalf of a wife to keep the 4 embryos frozen pending trial in June 2013 so they are not destroyed before this emotion laden issue can be determined for the first time in Canada.
The pre-embryos occupy a hybrid category between property and life as they are “potential persons in waiting” says MacLean who will argue that their fate and the rights of both parents are entitled to great respect.
Lorne MacLean, Q.C. argued:
Approaches in other jurisdictions have included a right-to-life approach, an approach giving pre-embryos the status of property that focuses upon the rights of the donors and the third “special respect” approach which take into account that pre-embryos occupy an interim position between property and a person, given their life potential and that special respect should be given that involves a balancing test that takes into account the rights of all parties.
The Claimant’s position is that the court should preserve this unique “hybrid” asset until the issue over whether it will be implanted in the Claimant or destroyed at the behest of the Respondent, is decided.
Changes coming into force under section 27 the new Family Law Act will change the definition of who is a parent in cases of assisted reproduction.
Mr. Justice Nathan Smith granted the order to transfer the embryos to the Genesis Fertility Clinic and ordered the wife was in charge of the preservation and maintenance decisions of the embryos pending trial in June 2013.
The trial will raise issues over:
- the validity of consent forms for storage and use of embryos and whether they should control important decisions regarding these forms of unborn life ,
- balancing the right to procreate against the right not to be forced to procreate in deciding
- whether the embryos can be used by the mother to conceive, whether the embryos will remain frozen indefinitely or whether they should be destroyed.
- a section 7 Charter challenge and a constitutional challenge as to whether section 8 of the Human Assisted Reproduction Act is ultra vires the Federal Government’s authority. Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual’s autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.
Stay tuned for more developments on this game changing case for Canadians.