Decision to view frozen embryo as ‘property’ is significant: Cohen

By Mia Clarke, Associate Editor

The decision to award a frozen embryo to a Sudbury woman is significant because it classifies the embryo as property, Toronto fertility lawyer Sara Cohen tells The Lawyer’s Daily.

But it also adds "another level of complexity" in cases where the parties aren't biologically related to the embryo, says Cohen, founder of Fertility Law Canada at D2Law LLP.

She says the decision leaves her wondering whether s. 8 of the Assisted Human Reproduction Act — which details what happens to embryos should a couple split and includes provisions around withdrawing consent — even played a role in the case.

“The answer in that situation is that the clinic basically cannot make use of that embryo without the consent of both parties," Cohen says. "And, arguably, at some point, we had the consent of both parties in this case, but that same Act also allows someone to withdraw their consent in writing.

"So, it is interesting to me because s. 8 touches on this point and I don’t believe it was even referred to in this decision," says Cohen.

“Whereas s. 8 simply says where there is a genetic connection between both parties and the embryo, if one of you doesn’t agree then no one can use it, and that was kind of black and white," she says, noting that the decision could add some grey to the issue in future cases.

“Maybe a consent form trumps what s. 8 says. I don’t think that was the intention, but it could be argued that way,” Cohen says.

The Lawyer’s Daily reports that the case centres around a divorced couple fighting over a frozen embryo that has no biological connection to either of them.

According to the decision, 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.

In 2011, the couple signed consent forms that stipulated the embryos are “property” and that, in the event of divorce, the woman’s wishes as to what to do with them would be followed, says The Lawyer’s Daily.

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.

While Superior Court Justice Robert Del Frate said there “is no law on point” when it comes to what to do with an embryo neither person has a biological connection to, he sided with the woman, says The Lawyer’s Daily.

“In my view, the parties knew what they were agreeing to at the time of signing the agreements,” wrote Justice Del Frate. “It would be contrary to contract law would 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.”

The judge said it comes down to determining intentions, says the article.

“As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions,” wrote Justice Del Frate in his decision.

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