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Judge says Sudbury woman can use embryo after legal fight with ex-husband

Ruling precedent-setting for fertility law
|Written By Gabrielle Giroday
Judge says Sudbury woman can use embryo after legal fight with ex-husband
Dale Brawn says a recent Ontario Superior of Justice decision allowing a woman to use an embryo to try to have a child against the wishes of her former husband is the first of its kind in Canada.

An Ontario judge has ruled that a Sudbury woman can use an embryo to try to have a child, after a legal battle with her former husband over ownership.

In S.H. v. D.H., 2018 ONSC 4506, Justice Robert G.S. Del Frate of the Ontario Superior Court of Justice ruled that a 48-year-old woman, known as D.H., could proceed with having the embryo implanted, after her former husband, known as S.H., objected to her plans for the embryo’s use.

Neither the woman nor the man had a biological connection to any of the embryos, according to the ruling.

The former couple had both participated in the creation of embryos, with donated eggs and sperm they purchased from a U.S. egg bank during their marriage, before they separated in 2012. Four embryos were created, two of which were unviable and destroyed.

Another embryo was used for the couple to have a son in 2012 — days before they separated — and one embryo was left, which became subject to the legal battle later, with the husband wanting to donate the embryo and the wife wanting to use it to have a child.

In the ruling, Del Frate said it was “abundantly clear” that separate contracts that the former couple signed, with MyEggBank in Georgia, where they purchased the donated eggs and sperm, and with the ISIS Regional Fertility Centre in Mississauga, Ont., where the two viable embryos were shipped, made “specific reference to how the embryos are to be dealt with in different circumstances.”

“In my view, the parties knew what they were agreeing to at the time of signing the agreements,” said the ruling, which determined that the embryo should go to the former wife for implantation. “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 ruling pointed out that in the Ontario contract, the former wife and husband agreed that if the relationship broke down, that “the Agent ‘shall’ respect the patient’s wishes.”

“The patient, being the wife, has elected to keep the embryo to attempt another implantation,” said the ruling. It also noted that the contract with the U.S. company addressed how embryos were to be disposed of.

The ruling said, “Both parties chose ‘donation’ if they were unable to agree. . . .”

Dale Brawn, the Sudbury lawyer who represented the woman, says the judge’s decision rested on principles of contract law.

Brawn says that, during the judge’s questioning of both sides, he focused on the expectations of the parties when they entered into the contracts.

“The other side did not acknowledge that it was clear, based on the Ontario contract, that the parties both signed a section saying that, ‘If we have a breakdown in our relationship, it is our intention that the mother would use it [and] would have the use of the embryo,’” he says. “The judge kept coming back again, saying to both sides, ‘Now what was going through your mind when you signed that? Was there any undue influence, was there any pressure?”

Brawn says that, ultimately, though the judge acknowledged the purchase and creation of the embryo was unlawful, he was still able to evaluate the parties’ intentions.

“[In] his view, the intentions were very clear, so that when it comes to the use of, in this case, a family asset — because he held that the embryo was property and is jointly owned when it comes to the use of the embryo — then simple contract law should prevail,” says Brawn, who adds that the case is the first of its kind in Canada because there was no biological connection to the embryo.

“I think his decision would have been different were the father’s sperm to have been used and then he would potentially become liable for child support,” says Brawn.       

Sara Cohen, founder of Fertility Law Canada and a partner at the firm D2Law LLP, says the ruling is precedent-setting.

“This is kind of the first time where we can really 100-per-cent see a decision where a judge is coming right out and calling an embryo property, so that’s a big piece,” she says.

Cohen says there have been different perspectives on whether an embryo is “almost like a pre-person” whereas others see it as “property” — or views somewhere in between.

Cindy Wasser, founder of Hope Springs Fertility Law, says the judge’s citation of the landmark Supreme Court of Canada decision in R. v. Morgentaler was crucial.

[T]he chances of a live birth resulting from the implantation and the respondent’s financial means are irrelevant to the matter at hand. Individuals have the right to make decisions of fundamental importance affecting their private lives, such as having (or not having) children, without unwarranted interference: see R. v. Morgentaler,” said the ruling by Del Frate.

Wasser has argued that there is a need to decriminalize compensation for surrogacy and gamete donation.

“One of the things I have been saying about the prohibitions and the need to decriminalize is that this is one of the last legislative vestiges in Canada that impinges on a woman’s reproductive rights,” she says. “The fact he cites Morgentaler for that purpose to say that this woman has control over her embryo and her right to use it and that that would supersede any other legislation . . . is really fascinating to me.”

  • Support?

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    And the bigger question: Will she sue for child support?

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