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Embryos Are Now Considered Property Under The Law

Embryo as property

In a potentially precedent-setting case, a Court in Sudbury, Ontario has awarded a woman ownership of an embryo, which the Court identified as “property” in its decision.

The case is being called a precedent-setting decision due to the fact that the embryo has no biological connection to the couple who were disputing the ownership of the embryo.

The Sudbury case revolves around a woman, 48, who was divorced from her ex-husband. The former spouses were fighting over who had the right to the embryo.

The former couple were childhood friends who got married in 2009 and wanted to have and raise children together. The man however, did not want his sperm to be used and the woman’s eggs were unsuitable. So three years after their marriage, they purchased eggs and sperm from a business in the United States for $11,500.00 US and two viable embryos were created through in-vitro fertilization.

Using one of the viable embryos, the woman in December 2012 gave birth to a son. Eight days later the marriage dissolved and through the divorce proceedings, both parties claimed ownership of the second embryo.

The Judge’s decision in awarding ownership of the embryo to the mother hinged on a consent form from a fertility clinic in Ontario, on which the couple indicated that the “patient’s wishes” would be honoured in case of any divorce. The form went on to describe the woman receiving the embryo as the “patient”.

The Judge ruled that the man could not change his mind and further stated that there could be no buyer’s remorse – when you sign a contract saying how the embryo will be used, then that contract is enforceable.

The man had argued that the consent form filled out and executed from the egg bank in the United States trumped the one filled out in the Ontario clinic. He also argued that since he had paid for the embryo it was his property, and that the woman refused to be gainfully employed and did not have the resources to support a larger family.

The woman however, claims that she plans to carry the second embryo and have a second child, and does not plan to seek child support from the man.

This case appears to be one of the first Canadian Court decisions to state that where there is no genetic connection, embryos are to be treated as property and that ownership will be determined based on property principles.

A clear decision for sure, but one wonders if consent forms are really the best way to make a decision in such a complex and emotional case, and whether true consent can come from something as simple as signing a consent form in the moment.

Since the first “test tube baby” was born 40 years ago, issues like this continue to arise, and the Courts are attempting to advance the law on such difficult issues in Canada. Treating embryos as property in situations where none of the parties have a biological connection to the embryo is a major development, which will have significant impact on fertility treatment in Canada, as contract law attempts to regulate issues that intersect with family law, as to who is ultimately responsible for the child in the event the embryo is carried and results in a birth. Estate issues may also arise, to clarify what rights a child born in these circumstances may have against the estate of the parties involved in the dispute over the ownership of the embryo.

This is an interesting decision which sets the stage for future embryo custody cases where a Court may be required to make a decision on who owns an embryo where there is a biological connection to one or both sides in the dispute.

If you have any questions, please do not hesitate to contact us.  

We have used over 10 Pallett Valo lawyers on different matters and find that they are always responsive.
Dr. Don Pinchin, Pinchin Environmental Ltd.