S.H. v. D.H.
[Indexed as: H. (S.) v. H. (D.)]
2019 ONCA 454
Court of Appeal for Ontario, Pepall, Hourigan and Fairburn JJ.A.
May 31, 2019
Family law — Children — Assisted reproduction — Appellant withdrawing consent to respondent’s use of cryopreserved in vitro embryo
after parties were divorced — Motion judge erring in applying principles of contract and property law to conclude that embryo should be
returned to respondent for her use — Parliament having imposed
consent-based model through Assisted Human Reproduction Act and
Consent Regulations — Parties remaining embryo’s “donor” under
s. 10(1)(b) of Consent Regulations even though they were no longer
married — Section 14(3) of Consent Regulations permitting appellant to
withdraw his consent to respondent’s use of embryo — Appellant’s right
to withdraw his consent overtaking any prior contractual agreement to
contrary — Assisted Human Reproduction Act, S.C. 2004, c. 2 — Assisted
Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137,
ss. 10(1)(b), 14(3).
While they were married, the parties contracted with a U.S. lab to create in vitro
embryos. One of the resulting two viable embryos was implanted in the respondent,
who became pregnant and gave birth. The other embryo was frozen. The
parties were subsequently divorced. The appellant wished to have the frozen embryo
implanted into her. Although the appellant had consented to the respondent’s use of
the embryo when it was created, he changed his mind and withdrew his consent.
The lab refused to release the embryo to the respondent without a court order.
Accordingly, she brought a motion for an order permitting her to use the embryo.
The motion judge applied principles of contract and property law to conclude that
the embryo should be released to the respondent for her use. The appellant
Held, the appeal should be allowed.
Neither contract nor property law governed in this case. Parliament has
imposed a consent-based, rather than a contract-based, model through the Assisted
Human Reproduction Act and the Assisted Human Reproduction (Section 8 Consent)
Regulations. The parties remained the disputed embryo’s “donor” under s. 10(1)(b)
of the Consent Regulations despite their separation and divorce. Section 14(3) of
the Consent Regulations provides that if the donor is a couple, either spouse may
withdraw consent before the embryo is used. The use of the term “spouse” in
s. 14(3) was not intended to preclude divorced couples, who together still constitute a donor couple, from withdrawing their consent. Rather, considering s. 14(3)
in the context of the other provisions, and against the overarching importance of
ongoing and fully informed consent in the statutory and regulatory scheme, the
right to withdraw consent continues while donor status continues, regardless of
a change in marital status. Despite having contracted in Ontario to permit the
respondent to unilaterally deal with the embryo according to her wishes in the
event of divorce, the appellant did not, nor could he have, contracted out of
the protections afforded to him under s. 8(3) of the Act and the Consent Regulations. To the extent that the Ontario contract purported to do that, it was void. In
any event, the Ontario contract clearly allowed for withdrawal of consent.