With advances in medical technology, the use of assisted human reproduction has increased significantly in the past 40 years, since the first child born from in vitro fertilization (IVF) was born. The law has not kept pace with the changing medical and societal landscape. A recent series of decisions across the country highlight the need for law reform and uncertainty for people using donated genetic material to build their families.

Earlier this year, the Ontario Court of Appeal released its decision in S.H. v. D.H., 2019 ONCA 454 [S.H.], which was the first case to consider the use of an embryo (for which neither of the parties had contributed genetic material) post-separation. In that case, during their marriage, the couple used a laboratory in the United States to create four in vitro embryos. The embryos were created with genetic material from anonymous sperm and ova donors. Neither member of the separating couple contributed genetic material for the creation of the embryos. One of the embryos resulted in a successful birth while the parties were married and they separated shortly thereafter. The female partner wanted to use the remaining embryo post-separation in order to have a full biological sibling for the child born during the marriage. The male partner opposed the use of the embryo post-separation.

At the trial level, the judge hearing the case decided the case on the basis of the two contracts that the parties had signed with the company that created the embryos in the United States and the fertility clinic in Ontario. Based on the Ontario contract, which stated that the patient's (defined as the female partner) wishes would be respected on the use of the embryos on marriage breakdown, the Court permitted the female partner to use the embryo provided she reimbursed her former partner for half the cost of creating the embryo. The male partner appealed to the Ontario Court of Appeal.

The trial level decision in S. H., mirrored an earlier decision from the British Columbia Supreme Court in M.(J.C.) v. A.(A.N.), 2012 BCSC 584. In that case, the Court had to decide which member of same-sex female couple had the authority to direct the use of 13 sperm straws that were purchased through an anonymous donor during their marriage after that marriage had ended. The rationale for the partner wishing to keep the straws for her use was the same as the female partner in S.H., namely to have a full biological sibling to a previous child born during the marriage. The British Columbia Supreme Court decision was based on property and contract principles and the straws were split 7-6 with one partner paying the other for ½ of one straw to compensate for the difference.

The Ontario Court of Appeal in S.H. considered an approach that was not argued by either party at the trial level. The Ontario Court of Appeal provides a thoughtful and comprehensive analysis on the invocation of the Consent Regulations to the Assisted Human Reproduction Act, S.C. 2004, c. 2 [AHRA]. The Consent Regulations define a "donor" as a couple who are spouses at the time the in vitro embryo is created, even where neither person within the couple contributes genetic material to the creation of the embryo. Accordingly, the male partner was a donor in accordance with the regulations and the Consent Regulations also allow for the withdrawal of consent by a donor prior to the embryo being used. The conclusion by the Ontario Court of Appeal, was that the male partner's "unmitigated right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive."

Initially, it may appear that S.H. and the previous decision in M.(J.C.) v. A.(A.N.), 2012 BCSC 584, are at odds. In fact, the difference is that the definition of "donor" as it applies to the creation of an embryo is more expansive (and includes both members of a couple even though neither contributes genetic material) than that of the sperm straws, where neither member of the couple would be considered a donor under the AHRA.

The conclusions that can be drawn for people considering the use of assisted human reproduction are to understand the limits on contractual terms. Canada has a consent-based regime for the use of human reproductive material and particularly in considering the creation of embryos, the contracting parties should be aware that continuous and on-going consent will be required for either party to use the embryo post-separation.

This is a developing area of law and gamete donors, intended parents, and surrogates, should consult with a lawyer to ensure they understand their rights and obligations prior to entering into any contractual relationship for the exchange of human reproductive material.

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.