Who gets frozen embryos after divorce?

family law, divorce, embryo, Canada, Osuji Smith, Calgary

On behalf of Osuji & Smith posted in Family Law on Tuesday, October 2, 2018.

Justice Robert Del Frate of the Ontario Superior Court (SH v. DH case) ruled recently that a woman could use a frozen embryo to conceive despite her ex-husband’s objections. The court reached the following conclusion: “A spouse who wishes to use an embryo to reproduce should be afforded this opportunity.” The judge’s reasoning, however, sets a troubling precedent and highlights problems with Canada’s assisted human reproduction laws.

The Ontario court determined that embryos can be used as “property” and decisions about them made accordingly, this raises new concerns about decision-making related to reproductive tissues, meaning that embryos may be treated like other forms of contested marital property in the case of a divorce.

The decision in this case potentially fails on two counts: first, it does not address the existence of regulations about consent for the use of embryos in Canada developed since 2005 (CC v. AW case, Alberta). These regulations allow for the withdrawal of consent of relevant parties up to the time that an embryo is used, and second, it does not address the complex nature of making decisions about embryo disposition, which require consent well beyond what is decided at the time that an embryo is created.

To complicate things further, this is the first case of its kind to deal with embryos unrelated to either party involved in the dispute. Neither the husband nor the wife had any biological connection to the embryo, which both of them had purchased from a fertility center in the state of Georgia, the parties signed a contract and bought donated eggs and sperm for US$11,500. Following the arrangement, two viable embryos were shipped to an Ontario fertility center, later one of the embryos was implanted in the wife who gave birth to a son and shortly after the child’s birth the parties separated.

Another fact to mention is that The Canadian Assisted Human Reproduction Act prohibits the purchase of sperm or eggs. Recently MP Antony Housewater proposed in the Parliament to address the shortcomings of the regulatory framework of this federal Act.


Who gets the frozen embryos in the divorce? Author: Alana Cattapan (Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of Saskatchewan). September 17, 2018

The battle over embryo highlights family law’s new fertility frontier  Financial Post by Laurie Dawlitza. September 5, 2018

Proposed revisions to assisted human reproduction law overdue Canadian Lawyer Magazine by Karen Busby. May 28, 2018

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