Frozen embryo awarded to ex-wife, judge acts on contract law

TORONTO — A frozen embryo sold to a now-divorced couple belongs to the ex-wife and can be implanted in her, an Ontario court has ruled in what appears to be a precedent-setting case.

The decision as to ownership of the embryo — created from donated sperm and eggs — turned on clauses in contracts the couple signed when they embarked on the fertility process that resulted in a son.

“There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos,” Superior Court Justice Robert Del Frate wrote in his decision.

The couple, identified only as D.H. and S.H., married in 2009. In 2012, according to court records, they paid $11,500 US to an American facility to buy donated eggs and sperm from which four embryos resulted. Two of the embryos proved viable and were sent to a fertility clinic in Mississauga, Ont., where one was successfully implanted in D.H. The other remained frozen in storage.

The couple split up at about the same time their son was born in December 2012, leading to an acrimonious divorce and the dispute over the remaining embryo.

D.H., now 48, asked the courts to award the embryo to She argued the contract the couple signed included a stipulation the Ontario clinic would respect the “patient’s wishes” in the event of divorce, and defined her as the patient.

She also said she would not seek child support from her ex.

Her former husband said he wanted the embryo donated. S.H. argued the contracts they had signed with the facilities indicated the embryos would be treated as property and that they were his because he had paid for them.

He also argued his ex was barely employed and therefore unable to support their son, let alone another child.

Despite a lack of direct legal precedents, Del Frate leaned heavily on what the couple had agreed to: The embryos would be treated as property.

Both names were on the contracts, and it was clear they planned to jointly own the embryos, the judge in Sudbury, Ont., said in his ruling.

“Accordingly, they must be divided as such, however, there is only one embryo,” Del Frate wrote.

Sara Cohen, a Toronto-based lawyer with expertise in fertility issues, said the ruling set a precedent, “where a judge came out and explicitly stated that an embryo should be treated as property.

“[But] the decision we’re waiting for is what happens when people do have a genetic connection to the embryo — is it still possible to treat an embryo like property.”