According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples.

With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments.

However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more?

Reproductive Material as Property

Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of "sperm straws" following the divorce of a lesbian couple.1 During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.2 Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.3 KLW v Genesis Fertility Centre also found that the reproductive material of the applicant's deceased husband was property under provincial legislation governing personal property passed through intestacy.4

Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner's death or loss of capacity.

Transition to a Consent-Based Regime

The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.5 The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties' son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated.

The trial judge held that the dispute should be governed by the law of contracts.6 The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple's separation. As such, the respondent was free to use the embryo however she wanted.

The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic's contractual terms.

Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of "consent", including:

  • A "donor" refers to:
    • individual(s) for whose reproductive use an in vitro embryo is created; or
    • a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to.
  • Written consent is required from the donor before the embryo is used.
  • Donors can consent for the embryos to be used for one or more of the following purposes:
    • the donor's own reproductive use;
    • a third party's reproductive use;
    • improving assisted reproduction procedures; and
    • providing instruction in assisted reproduction procedures, or a specific research project.
  • If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent.
    • If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time.

In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant's reproductive material was not used.

It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH.

Implications

Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other's consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant's request to harvest her late husband's sperm.7 Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor's body posthumously without their written consent, which the donor did not provide.

These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations.

Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made.

What Couples Should Understand Before Creating Embryos

As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged.

Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the "donor" in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren).

This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies.

Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father's consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child.

Footnotes

1. 2012 BCSC 584.

2. Ibid at paras 75 and 96.

3. 2015 BCCA 2.

4. 2016 BCSC 1621 at paras 97-100.

5. 2019 ONCA 454.

6. 2018 ONSC 4506.

7. 2020 BCCA 328.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.