Frozen embryo awarded to ex-wife

TORONTO — A frozen embryo sold to a now-divorced couple belongs to the ex-wife and can be implanted in her, a 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,” Ontario Superior Court Justice Robert Del Frate wrote in his decision.

“[However], it would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to. One cannot apply buyer’s remorse.”

The couple, identified as D.H. and S.H., married in early 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 her. Among other things, 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 and pointed out the embryo was of particular significance because it would potentially lead to the only connection to biological family her son would have.

Her former husband objected to her request, saying he wanted the embryo donated instead. S.H. argued the contracts they signed with the facility in Georgia and the Canadian clinic indicated the embryos would be treated as property and that they were his because he had paid for them.

He said his ex was barely employed and unable to support their son, let alone another child, court documents show.

Despite a lack of direct legal precedents, Del Frate leaned heavily on what the couple agreed to when they went down their chosen fertility path — that the embryos would be treated as property. Both names were on the contracts, and it was clear they planned to jointly own the embryos regardless of who paid for them, the judge in Sudbury, Ont., said in his ruling.

Del Frate wrote: “As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions.”