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The 'ethical conundrum' of embryo ownership

Issues around who gets an embryo in a divorce are only going to become more prevalent, Toronto family lawyer Jennifer Samara Shuber tells

“The use of assisted reproductive technologies like in-vitro fertilization is quite common,” says Shuber, a lawyer with Beard Winter LLP. “As a result, there is storage of embryos and genetic materials and some of those couples are going to break up.”

CBC News reports a court in Sudbury awarded an embryo to a woman in a case involving her ex-husband, in what is being called a precedent-setting decision because the embryo has no biological connection to the couple.

“Two childhood friends decided to get married in 2009 to have and raise children together, but the man didn't want his sperm used and the woman's eggs weren't suitable. So three years later, they purchased eggs and sperm from a business in the United States for $11,500 US, and two good embryos were created through in-vitro fertilization,” the article states.

“In December 2012, the woman gave birth to a son. Eight days later, the marriage dissolved and both sides claimed ownership of the second embryo in the divorce,” it continues.

Shuber, who was not involved in the matter and comments generally, says the judge’s decision relied on a fertility clinic consent form which indicated the patient's wishes would be honoured in case of divorce.

“The woman receiving the embryo was defined as ‘the patient’ in the consent forms and contract,” she says.

Justice Robert Del Frate found the contract places the responsibility of deciding on the court and takes away the wishes of the parties.

“In my view, the parties knew what they were agreeing to at the time of signing the agreements. It would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to. One cannot apply buyer’s remorse,” he wrote.

Shuber says an interesting question would be what happens if there was a biological connection to the genetic material.

“Let's say there wasn’t a biological connection to the mother but there was to the father, would the contract still trump? The courts have not yet made a clear determination on who gets genetic material that has a biological connection to one or both parties in the event of a divorce.

“It's an ethical conundrum that the law is going to be challenged to deal with,” Shuber adds.

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