Court views frozen embryo as property

By Mia Clarke, Associate Editor

An Ontario court has awarded a frozen embryo to a Sudbury woman in a potentially precedent-setting case that came down to property ownership, Toronto fertility lawyer Sara Cohen tells the National Post.

“It is the first time, to the best of my knowledge, where a judge came out and explicitly stated that an embryo should be treated as property,” says Cohen, founder of Fertility Law Canada at D2Law LLP.

“(But) the decision we’re waiting for is what happens when people do have a genetic connection to the embryo — is it still possible to treat an embryo like property?”

She tells the CBC the time is ripe for a landmark embryo custody case where the courts make a clear decision on who gets an embryo that has a biological connection to one or both sides in a divorce.

"Although these issues are addressed in s. 8 of the Assisted Human Reproduction Act, the court decision did not refer to it," Cohen tells AdvocateDaily.com.

In the Sudbury case, neither party had a biological connection to the embryo, says the National Post.

The newspaper reports that the couple married in early 2009 and in 2012, they paid US$11,500 to buy donated eggs and sperm. Two viable embryos were sent to a fertility clinic in Mississauga, Ont., where one was successfully implanted in the woman. The other remained frozen in storage.

The woman gave birth to a son in 2012 and the couple separated a few days later. An acrimonious divorce followed, which included the dispute over the remaining embryo, says the National Post.

The woman argued that the consent form the couple signed included a stipulation that the Ontario clinic would respect the “patient’s wishes” if the relationship broke down, and defined her as the patient, says the report.

The husband argued that the embryos should be treated as property and belonged to him because he had paid for them.

Cohen tells Canadian Lawyer the ruling is precedent-setting.

“This is kind of the first time where we can really 100-per-cent see a decision where a judge is coming right out and calling an embryo property, so that’s a big piece,” she says.

She says some courts have viewed an embryo as “almost like a pre-person” whereas others see it as “property” — and variations in between.

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