IN WHAT IS BELIEVED TO BE A COURT FIRST, AN ONTARIO JUDGE HAS AWARDED CUSTODY OF A FROZEN EMBRYO TO THE EX-WIFE OF A NOW DIVORCED COUPLE, FINDING THE EMBRYO IS PROPERTY AND CONTRACT LAW APPLIES.

In what appears to be a precedent-setting case, an Ontario judge has ruled that a 48-year-old woman can use an embryo she purchased with her then husband to have a child, despite the man’s objections following their divorce.

The couple — identified in court documents only by their initials — were longtime friends who married in 2009 with plans of having a child together, the woman’s lawyer said. They paid US$11,500 for four embryos using donated eggs and sperm, not their own, from a U.S. facility in 2012. Two of the embryos weren’t viable.

The Sudbury, Ont., couple used one of the viable embryos and the woman gave birth to their son in December 2012. But the couple separated just over a week later, leading to an “acrimonious divorce” and an eventual court battle over ownership of the last embryo, Ontario Superior Court Judge Robert Del Frate wrote in his decision.

The wife, identified as D.H., said she wanted to attempt an implantation, showing the court a doctor’s note stating she was physically capable of carrying the pregnancy to term. The husband, S.H., wanted the embryo donated instead. He argued he paid for the embryos, so they were his property. Plus, he said, it was not in the best interest of his son to have a sibling since his former wife “refused to be gainfully employed.”

The woman’s lawyer, however, disagreed, saying she had completed a program to become a personal support worker. She was clear that while the couple had joint custody of their son, she wouldn’t be seeking any support for the second child.

Del Frate acknowledged the case was unique, and unfamiliar for the court. “There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.”

He did look to a Supreme Court of British Columbia decision from 2012, that ruled a divorced couple split the 13 sperm straws they purchased while they were together.

But in this case, the judge noted, “it is not possible to simply split the embryo.”

He looked instead at two contracts the couple signed, one at the Georgia facility where they purchased the embryos, the other at a facility in Mississauga, Ont., where the embryos were stored.

In the contract at the Mississauga facility, the judge found both the husband and wife agreed that in the event they separated, the clinic would honour “the patient’s wishes,” not the husband’s.

“I find that the contracts are valid and pursuant to that contract, ‘the Agent shall: Respect the patient’s wishes,’” Del Frate wrote. “One cannot apply buyer’s remorse.”

But he also ordered the woman to pay her former husband for his share of value of the embryo, which came to US$1,438 ($1,869). “It is also clear that the embryo is property,” he wrote.