Recent Judgment Impacts the Ownership of Reproduction

A recent judgment of the Ontario Supreme Court, SH v. DH, 2018 ONSC 4506 (“SH”), has set an interesting precedent regarding embryos as property in a divorce when the couple has no biological connection to the embryo. Del Frate J., writing for the court, ultimately sided with the respondent wife while considering aspects of family law, contract law, and human rights law.

In SH, a married couple purchased four embryos from a facility in Georgia for $11,500 USD. Only two of the embryos were viable, and those were then sent to a facility in Mississauga, Ontario, to be implanted in the wife. The wife successfully gave birth to a boy from one of the embryos, and shortly thereafter the couple sought a divorce. They both wanted a different future for the remaining embryo. The wife wanted another child from it, and the husband wished to donate it. According to the Assisted Human Reproduction Act (Canada), the sale of an embryo is illegal, so the court had to make a ruling on ownership.

There were two contracts signed by the couple over the course of these events that were considered. The first was at the facility in Georgia where the embryo was purchased. In this contract, it was stated that in the event of a divorce, the legal ownership must be determined in a property settlement. The second contract was signed at the facility in Mississauga when the embryo was implanted. In that contract, the parties agreed in the event of a divorce, the agency shall respect “the patient’s wishes”. The “patient” here was determined by the Court to be the wife, and following the judgment she was granted ownership of the remaining embryo. Arguments against this decision concerning her age, financial means, and best interests of the previous child were all dismissed.

In coming to the decision, Del Frate J. also considered the BC case JCM v. ANA, 2012 BCSC 584 (“JCM”). The Court in JCM held that sperm straws were also property in the course of a divorce, but because there were multiple straws (13), they were divisible between the parties. As the division was uneven (7 to 6), the party that received the extra straw had to compensate the other for her interest in a half straw. Accordingly, in SH, since the embryos were purchased for $2,875 USD each, the husband was compensated $1,438 for his interest in half the remaining embryo.

The decisions in SH and JCM set interesting precedents regarding the Courts’ treatment of reproductive materials as property and how that property will be valued moving forward.