Reproductive technology is a rapidly growing and changing sector of the medical field. As the ability to store, transport and alter genetic material into viable embryos improve, Canadians have more options than ever to reproduce. While the new technology has been a blessing for many, the existence of viable embryos or other genetic material in fertility clinic can lead to new legal challenges. One legal question was determined by the Ontario Court of Appeal in SH v. DH. This case considered the possibility of owning a live embryo and has significant implications for Canadians considering in vitro fertilization.
In the case of SH v. DH, a married couple applied for in vitro fertilization through a fertility clinic in Mississauga. Two viable embryos were created using genetic material from third parties and one was used to impregnate the applicant while the other remained in storage. After the couple divorced, the applicant wished to use the other embryo to impregnate herself again while the respondent attempted to block her from doing so.
At the trial level, the court adopted a “contract model” for dealing with disputes with in vitro fertilization and looked through the agreement made with the fertility clinic. The court found that the intentions of the parties when making the contract were to allow the applicant to impregnate herself with multiple embryos. The court held that the respondent could not block the fertilization treatment due to “buyer’s remorse.” The respondent appealed the case.
The Ontario Court of Appeal overturned the decision at trial. In its decision, the court found that: “Parliament has imposed a consent-based, rather than a contract-based, model through legislation and regulation.” In coming to this conclusion, the court cited the provisions of the Assisted Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent) Regulations. These regulations prohibited the use of in vitro embryos “for any purpose without…written consent” from the donor. The regulations defined “donor” to be inclusive of a couple who are spouses at the time the embryo is created “even where neither person within the couple contributes reproductive material to the embryo.” Further, the regulations allowed either spouse to withdraw consent before the embryo is used.
This case has significant implications for couples considering in vitro fertilization or who have cryopreserved embryos. The case determined that embryos are not property in Ontario and cannot be handled according to the principles of property or contract law. Instead, couples in Ontario must look to the Consent Regulations to determine who has the right to withdraw consent to the use of the embryo.
The law is constantly changing in response to technology and it is important to stay up to date with the latest developments. Increasingly genetic material, including cryopreserved sperm, eggs and embryos are the subject matter of legal disputes. If you have questions about how the law affects your medical choices, email us at info@law365.ca or call us at (647)-494-9599.
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