14(3) If the donor is a couple, the consent of the donor may be withdrawn
by either spouse or common-law partner.
 The appellant argues that he has properly withdrawn his
consent in writing and in accordance with the regulations.
Accordingly, if the respondent were to have the embryo implanted
into her, she would do so without donor consent and this would
constitute a criminal offence under s. 8(3) of the AHRA.
 The respondent maintains that there is a flaw in the appellant’s argument, hinging on the fact that the appellant is no
longer the respondent’s spouse. Although the respondent
acknowledges that s. 14(3) allows for one spouse or common-law
partner to withdraw consent to use of an embryo when the
“donor is a couple”, s. 1(2) of the Consent Regulations removes
the appellant from the category of “spouse”. Section 1(2) reads:
1(2) In these Regulations, the term spouse does not include a person who, at
the relevant time, lives separate and apart from the person to whom they are
married because of the breakdown of their marriage.
 The respondent asserts that s. 1(2) clearly deprives the
appellant of his status as a “spouse” and, accordingly, he cannot
invoke the protections that would have otherwise been available
to him under s. 14(3), but for the parties’ separation and
divorce. The respondent contends that s. 1(2) is intended to
honour and protect a couple’s joint decisions made during the
course of a marriage, preferring those decisions to the whims of
former spouses. There is nothing unfair or contrary to public
policy about precluding the appellant from withdrawing his consent now. The respondent maintains that it makes good sense to
hold the appellant to what he agreed to during the course of his
marriage to the respondent, prior to when the parties’ relationship became admittedly acrimonious.
 Even if she is wrong about the appellant’s inability to
withdraw his consent under s. 14(3) of the Consent Regulations,
the respondent argues that the appellant specifically contracted
out of any right that he may have otherwise had under those
regulations. Having contracted those rights away, the respondent
maintains that the appellant cannot now summon their assistance.
In contrast, the appellant maintains that it is not possible to
contract out of the protections afforded under the AHRA and
Consent Regulations. This argument rests on the fact that s. 8(3)
of the AHRA constitutes criminal law and criminal law protections cannot be contracted away.