SEPARATED COUPLE BATTLE OVER FATE OF EMBRYOS FROM DONATED EGGS AND SPERM.

Separated couple battles over fate of embryo

Family law is everchanging. In one of the summer’s most interesting family law decisions, SH v. DH, Justice Robert Del Frate of the Ontario Superior Court was asked to decide the fate of an embryo which the husband and wife had purchased from a fertility centre in the state of Georgia. The parties signed a contract and bought donated eggs and sperm for US$11,500.

Pursuant to that arrangement, two viable embryos were shipped to an Ontario fertility centre. Neither the husband nor the wife had any biological connection to theembryos.

One of the embryos was implanted in the wife, who gave birth to a son. Shortly after the child’s birth, the partiesseparated.

As part of their acrimonious divorce, the parties disputed what should happen with the remaining embryo. The wife wanted to use it; the husband objected.

Under the contract signed by both parties with the Ontario fertility clinic, they agreed that the embryos would be treated as property. This contract specifically said that in the event of a separation, the fertility centre was obliged to respect the wishes of the patient — in this case, the wife.

The Georgia contract signed by the parties said that in the future, any remaining embryos would be donated if the parties died, were incapacitated or could not agree on the disposition of the embryo. However, the Georgia contract went on to say that in the event of a separation, the legal ownership of the stored embryo would be property and a court would determine the issues related to its release.

Complicating the matter further was the Assisted Human Reproduction Act — the Canadian legislation which prohibits the purchase of sperm or ova.

Justice Del Frate acknowledged that he was obliged to decide whether the contracts took precedence over the legislation.

The parties agreed that the remaining embryo was property. The husband wanted the embryo donated to another user, under the terms of the Georgia contract. He argued that as he had paid the whole purchase price for the embryo, it was his property, and that a sibling for the parties’ child, born from the same egg and sperm donors, was not in their son’s best interests. The husband also argued that the wife was refusing to work more than part-time, and as a result, their current son’s support fell mostly on him.

The wife argued, among other things, that she was the “patient” under the Ontario contract, and as such, her wishes should be respected. She also said she would not seek child support from the husband if she gave birth to another child using the embryo.

SH v. DH was the first case of its kind to deal with embryos unrelated to either party involved in the dispute.

Justice Del Frate considered a 2012 B.C. case, JCM v. ANA, in which a separated lesbian couple who had each used sperm from the same sperm donor to have a child could not agree on the use of the remaining sperm. One of the mothers had entered into another relationship, and wished to use the sperm the couple had purchased together to conceive another child, so that the children would be related.

In JCM, Justice Russell of the British Columbia Supreme Court side-stepped the Assisted Human Reproduction Act prohibiting the purchase of sperm, decided that the sperm was indeed property, and divided the sperm straws between the two mothers to use as they wished. In doing so, Justice Russell held that “the legislation does not ... even influence whether or not the gametes (eggs or sperm) in this case are property.”

In determining the ownership of the remaining embryo in SH v. DH, Justice Del Frate carefully reviewed both the Georgia and the Ontario contracts the parties had signed. He found that the Ontario contract was clear that the fertility clinic was obliged to respect the wishes of the “patient” (wife).

While under the Georgia contract, the parties agreed to donate the embryo if they could not agree on its disposition, it went on to state that if the parties separated, “the legal ownership of any stored embryo must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction.”

Because the two contracts did not conflict, Justice Del Frate was not obliged to decide which of the two contracts took precedence: a plain reading of the Georgia contract placed the decision in the court’s hands, and the Ontario contract left the decision to the wife.

In making this decision, however, Justice Del Frate was mindful that the parties paid US$11,500 to create the four embryos, and decided each embryo was worth US$2,875. As a result, His Honour also ordered that the wife pay to the husband US$1,438 to compensate him for the embryo.

SH v. DH is the first case relating to the ownership of viable embryos unrelated to either party, but it is not the first case dealing with the advances in medical science. Other cases have determined the ownership and use of embryos biologically related to one or both of the claimant parties and a lawsuit for damages brought by chemotherapy patients whose sperm had been preserved prior to their cancer treatment, but whose sperm perished because of flawed storage conditions.

In SH v. DH, Justice Del Frate confirmed that “these types of cases are in their infancy... (but) unless legislative changes are made, this court must decide disputes such as this one based upon the agreements signed and the parties’ intentions.”