Vancouver Calgary Frozen Embryo Disputes -Can I Prevent My Ex-Spouse From Using Our Embryos After Separation?
Fertility issues can be devastating for a couple who wishes to have a baby. That is why many couples turn to in vitro fertilization (IVF) to increase their chances of conceiving. During the IVF process, mature eggs are taken from a female donor and fertilized to create embryos. Sometimes, a couple who has successfully conceived through the IVF process will still have embryos left over, which they may choose to preserve in case they wish to conceive again.
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However, issues may arise when a couple divorces or separates, and there are still embryos leftover. Who gets the embryos? And what are they allowed to do with them? Can one party prevent the other party from using the embryos? How are Vancouver Calgary Frozen Embryo Disputes decided? In today’s blog, Kaye Booth gives you a primer on this key topic.
This is an emerging area of law and it is highly recommended that a party involved in a dispute over embryos enlist the services of an experienced lawyer to help resolve matters.
Contact our Vancouver Calgary fertility law lawyers today.
Canadian AHRA Laws and Rules Require Joint Consent
Section 14(3) of the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the Regulations), states:
If the donor is a couple, the consent of the donor may be withdrawn by either spouse or common-law partner.
As such, Canada does not approach issues of fertility law through a contractual lens, but through a consent-based approach. Lorne MacLean, QC founder of our Vancouver Calgary Fertility Law Lawyers set new law in the BC Supreme Court concerning the preservation of disputed frozen embryos. The question remains whether the federal legislation is subject to a charter challenge to enable a judge to decide a frozen embryo dispute in the absence of mutual consent.
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In SH v DH, 2019 ONCA 454 (SH), a couple separated, and still had embryos left over from their IVF treatments. The Respondent wanted to have one of the embryos implanted inside of her, but the Appellant refused. The two parties had signed an agreement before divorcing stating that they would respect the other party’s wishes in regards to the embryos.
The Court concluded that the Appellant fell under the definition of “Spouse” in the Regulations, despite being divorced from the Respondent, and that therefore, the legislation applied to him. As such, the Court held that the Appellant was allowed to withdraw his consent, despite previously having given his consent in writing (at para 32):
Applying the modern principles of statutory interpretation to the regulatory and statutory scheme as a whole, I conclude that in the circumstances of this case, the appellant may withdraw his consent to the respondent’s use of the embryo. The appellant is not bound to his prior written consent, distilled in the form of an otherwise lawful contract, because the statutory and regulatory provisions fundamentally preserve a donor’s inherent right to change her or his mind about in vitro embryo use.
The Court went on to state that the importance of consent in regards to reproductive decisions was directly at odds with contract law (at para 69). Furthermore, if the Respondent were to use the embryo without the Appellant’s consent, this would constitute a criminal offence (at para 70). No one can contract out of a criminal offence.
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Even if you have a valid contract stating otherwise, the Ontario Court of Appeal has stated that you have a right to disallow your ex-spouse from using the embryos you gained before your divorce. This decision set a precedent in fertility law but has yet to be affirmed in British Columbia or Alberta or by the Supreme Court of Canada. If you are in a dispute over your and your ex-partner’s embryos, you need an experienced lawyer to help navigate you through this difficult and emerging area of the law. Contact the Vancouver Calgary Fertility Law Lawyers at MacLean Law today, and we will give you the assistance you need.
