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Lorne and Fraser MacLean

IVF Frozen Embryo Dispute cases are becoming more common. Specific Canadian statutory sections and regulations require the consent of both  “parents” without a current clause allowing the court to decide tough cases. Our skilled IVF Frozen Embryo Dispute lawyers predict a Charter of Rights challenge will be filed in the near future to enable a judge to be able to break a deadlock when one “donor” wants to use the frozen embryos after separation or death of one of the ‘donors”. A key part of the disputed case just released by the Ontario Court of Appeal was the fact that neither parent contributed their own genetic material to the frozen embryos. The question becomes more difficult when the parent’s own genetic material is used and when the use of the embryos may be the only way for a parent to have a child at all.

Lorne N MacLean, QC won a BC IVF Frozen Embryo Dispute order preventing the destruction of frozen embryos. Read Lorne N Maclean, QC’s blog on why we think The AHRA has flaws.

IVF Frozen Embryo Dispute Call 1 877 602 9900

A new Ontario Court of Appeal decision has ruled that federal Canadian  legislation, Assisted Human Reproduction Act, S.C. 2004, c. 2 [AHRA], and the Assisted Human Reproduction (Section 8 Consent) Regulations, S.O.R./2007-137 (“Consent Regulations”), requires the consent of both parties after separation for embryos to be able to be used and the right to withdraw consent cannot be contracted away.

[1]          The parties are divorced. When they were still married, they decided to use in vitro fertilization (“IVF”) in their efforts to have a child. IVF involves the combining of sperm and ova outside of the human body to create embryos that can be later transferred to a uterus to continue developing. The parties contracted in 2011 with a lab in the United States to create the in vitro embryos. The lab combined the reproductive material from two anonymous individuals whom the parties had selected and four in vitro embryos resulted, two of which were viable. Neither party contributed their own reproductive material to the embryos. The viable embryos were then frozen in a process known as cryopreservation.

[2]          Shortly after their creation, the embryos were sent to a lab in Canada and one was implanted into the respondent. She became pregnant and a child was born. Shortly after the birth of that child, who is now six years of age, the couple separated and eventually divorced. They share custody of their child.

[3]          The dispute that lies at the centre of this case is about the use that can be made of the remaining cryopreserved in vitro embryo. The respondent (ex-wife) wishes to have that embryo implanted into her. Any child resulting from that process would be a full biological sibling to the parties’ child. The respondent says that if the IVF is successful, and a child is born, she will not seek any form of child support from the appellant. Although the appellant (ex-husband) consented to the respondent’s use of the embryo when it was created, he has changed his mind and now wishes to withdraw his consent. At this stage, the appellant is only prepared to have the embryo donated to a third party.

[4]          The appellant wrote to the Canadian lab storing the embryo and withdrew his consent to the respondent’s use of the embryo. In light of that written withdrawal of consent, the lab said that it would not release the embryo to the respondent without a court order. Accordingly, the respondent brought a motion seeking an order permitting her to use the embryo. The motion judge applied principles of contract and property law to conclude that the embryo should be released to the respondent for her use. This is an appeal from that decision. I conclude that neither contract nor property law principles govern in this case.

[5]          For the reasons that follow, I would allow the appeal. 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. As I will explain, the correct interpretation and application of the relevant legislative framework determines the result in this case.

[6]          Many provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 [AHRA], and the Assisted Human Reproduction (Section 8 Consent) Regulations, S.O.R./2007-137 (“Consent Regulations”), are engaged in this decision and discussed in detail later on.[2] The most central are the following: (1) s. 8(3) of the AHRA prohibits the use of an in vitro embryo for any purpose without regulation-compliant written consent; (2) s. 10(1)(b) of the Consent Regulations defines the term “donor” to include a couple who are spouses at the time the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo; and (3) s. 14(3) of the Consent Regulations provides that if the donor is a couple, either spouse may withdraw consent before the embryo is used.

[7]          For the reasons that follow, I conclude that the parties together remain the disputed embryo’s “donor” under s. 10(1)(b) despite their separation and divorce, and, even though they are no longer married, s. 14(3) allows the appellant to withdraw his consent to the respondent’s use of the embryo. The appellant’s unmitigated right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive in this case.

Parties Cannot Contract Out of the AHRA s. 14(3) Right to Withdraw Consent Prior to Use Call 1 877 602 9900

[71]       Section 8 of the AHRA reflects deep societal respect for donor consent in the context of reproductive technology.Indeed, that is why it survived constitutional scrutiny in Reference re AHRA: seeMcLachlin C.J. at paras. 10, 156, and Cromwell J. at paras. 291, 294. Section 8(3) makes it a criminal offence to use an in vitro embryo without consent and, therefore, the absence of consent is an essential element of that criminal offence. Accordingly, were the respondent to go ahead and use the embryo in the face of the appellant’s lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.

[72]       An individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law.Any effort to do so is void ab initio..

MacLean Law’s IVF Frozen Embryo Dispute lawyers help guide you through a myriad of rules and regulations. Call 1 877 602 9900