“Custody” of Frozen Embryos after Separation or Divorce

Advances in science and technology have provided a way for couples to freeze and preserve embryos (called a “blastocyst”). Such advances in reproductive technology provides more options for those who may choose to delay having children, or who are undergoing in vitro fertilization procedures. However, in the time between agreeing to the preservation of the embryo and the decision to move forward with a pregnancy, things may change. For example, a couple may separate, or may simply disagree on whether to use an embryo. Both of these situations have legal implications, and if you are planning to explore in vitro fertilization or freezing embryos for later use, it is critical to understand your legal rights and obligations from the outset. 

Disputes over frozen embryos are becoming more common in family law. Instead of disputes about parenting time or decision-making responsible with respect to children, a couple may disagree about what happens to or who gets control of the frozen embryos upon separation and/or divorce. One party may want to then go through with procreation while the other party may not. 

In 2019, the Ontario Court of Appeal addressed whether one party may proceed with procreation with the couple’s frozen embryo post-separation and divorce when the other party opposed it. In S.H. v. D.H.,^[1] a heterosexual married couple had purchased two embryos from a fertility clinic in the United States and had them stored in a fertility clinic in Ontario. Neither party contributed their own reproductive material to the embryos. 

During their marriage, one embryo was implanted in the wife who became pregnant and gave birth to the couple’s son. There was one remaining embryo. Subsequently, the couple divorced, and the wife wanted the remaining embryo implanted in her. Although the husband had consented to the wife’s use of the embryo post-divorce when it was created, he changed his mind and wished to withdraw his consent.  

The couple had a contract with the Ontario fertility clinic that stated that in the event of divorce, the wife’s wishes would be respected but the couple’s contract with the US fertility clinic left the issue open-ended. Consequently, the wife brought a motion for an order naming her the owner of the embryo and an order allowing the fertility clinic to implant the embryo in her. 

The Ontario Court of Appeal ruled that the applicable law, being the Assisted Human Reproduction Act (“AHRA”)^[2] and the accompanying Assisted Human Reproduction (Section 8 Consent) Regulations (“Consent Regulations”)^[3] requires the consent of both parties (called “donors” in the regulations). This consent can be withdrawn at any time. Further, it is not possible to “contract out” of this requirement for consent (i.e., a party cannot waive their right to withdraw their consent in a contract). Any “individual for whose reproductive use an in vitro embryo is created” is considered a “donor”, and therefore the parties in S.V. v D.H. fell under the regulations even though they had not contributed genetic material to the embryo. 

Accordingly, despite having contracted in Ontario to permit the wife to unilaterally deal with the embryo according to her wishes in the event of divorce, the husband did not, nor could he have, contracted out of the protections afforded to him by the AHRA and the Consent Regulations. Therefore, the court did not allow the wife to implant the remaining embryo. 

While the AHRA states that embryos cannot be used or donated without the consent of both parties, it does not state what happens to the embryos if the parties cannot come to an agreement. In other words, the law remains unclear about whether the embryos must remain frozen and in storage until the parties can come to an agreement or if the embryos can be destroyed. 

If you are considering preserving an embryo or have embryos already frozen and are recently separated and/or divorced, speak to a fertility lawyer at McKenzie Lake – we would be pleased to assist you! 

For further information with regard to Surrogacy in Canada, please visit the MySurrogateMom website.

This article was written by Family Law Lawyer Megan Strachan.

^[1] 2019 ONCA 454. 

^[2] SC 2004, c. 2. 

^[3] SOR/2007-137.