What Happens to Frozen Embryos After Divorce?

In-vitro fertilization (IVF) is a common infertility treatment for couples who are trying to conceive. For older couples in particular, IVF using donor eggs or sperm has a significantly higher chance of success. In Canada, however, it is illegal to buy donor eggs. This reality has driven many desperate couples across the border, to the United States, where compensation services are permitted.

The purchase and sale of embryos—created from donated sperm and eggs—is fraught with legal, social and ethical implications. One major legal issue is: what happens to frozen embryos when a couple separates or divorces? This type of “custody” battle marks a unique frontier in family and reproductive law. A recent Ontario court case has tackled this issue in a landmark decision.

On July 25, 2018, in the case of S.J. v D.H., 2018 ONSC 4506, an Ontario judge granted a woman ownership of a frozen embryo that she purchased with her husband during their marriage. By way of background, the couple married in February 2009. In February 2012, they spent $11,500 USD to buy donated eggs and sperm from a company in Georgia, United States. Four embryos were created, although only two were viable. One of the viable embryos was implanted in the wife, leading to a successful pregnancy and the birth of their son in December 2012. The second embryo remained frozen in storage at a fertility clinic in Mississauga, Ontario.

The couple separated about a week after the birth of their son and an acrimonious divorce ensued. One of the matters in dispute was what should happen to the remaining embryo. Both parties recognized the embryo as “property.” However, the wife wanted to keep the embryo for a second pregnancy and the husband wanted the embryo donated instead.

Given that both the eggs and sperm were donated, neither the husband nor the wife had a biological connection to the embryo. This is an important fact. As the judge appropriately stated, “There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.”

The case ultimately resolved on contract law principles. The couple had signed several contracts regarding the purchased embryos: one with the Ontario fertility centre (“the Ontario contract”) and two with the Georgia company (“the U.S. contracts”). The Ontario contract prioritized the “wishes of the patient” in the event of a separation or divorce. The “patient” was defined as the wife. The U.S. contracts, on the other hand, did not consider the wishes of either party and left the disposition of the embryos up to the court in the event of a separation or divorce. Which contract should be upheld?

The court concluded that the Ontario contract had to govern, a decision that turned on a central principle of contract law: freedom of contract. This principle respects the choice of individuals and their right to negotiate terms of agreement amongst themselves. Courts are generally reluctant to intervene unless fundamental fairness demands it, such as protecting against unequal bargaining power. In this case, the court determined that the couple knew exactly what they were agreeing to when they signed all three Ontario and U.S. contracts. Neither party claimed undue influence, mistake, misrepresentation, or any other basis on which to find the contracts were not legally binding.

Despite the clause in the U.S. contracts giving the court authority to make a decision on the couple’s behalf, the court essentially declined this responsibility and pointed to the Ontario contract, which provided specific instructions that the couple consented to. The couple consented to respecting the “wishes of the patient” in the separation or divorce. There was no confusion that “the patient” was the wife. Accordingly, the court enforced this instruction and released the embryo to the wife. However, as the embryo was still considered jointly-owned “property,” the husband was awarded his half of the value of the embryo, amounting to $1,438 USD.

This case serves as an important reminder for individuals and couples to exercise due diligence when they want to have children through donor eggs and sperm. Signing a contract, or multiple contracts, may seem like routine practice, but it carries real consequences. Just as in cohabitation or pre-nuptial agreements, consider the terms fertility agreements carefully as you are likely bound to them.

Seek assistance from trained professionals who will help you navigate through the whirlwind of paperwork and emotions that come with complex assisted reproduction services. Obtain independent legal advice on fertility contracts before you sign, in order to protect your future interests.

Tailor Law Professional Corporation offers a free initial consultation, in which you can speak to a lawyer about your situation. The lawyer will inform you of your rights and options, and help you come up with a plan to move forward.

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