common-law partner at the time the in vitro embryo is created”,
the individual for whose use the embryo is created becomes the
“donor” of the embryo: s. 10(1)(a). That provision does not apply
to this case because the parties were married at the time that the
embryo was created for them. This leads us to s. 10(1)(b) of the
 Section 10(1)(b) specifies that a “couple who are spouses or
common-law partners at the time the in vitro embryo is created,
regardless of the source of the human reproductive material used
to create the embryo”, become the “donor” of the embryo (emphasis
added). Because the parties were married spouses when the embryo was created for their reproductive use, together they
became the embryo’s “donor” as defined under the Consent Regulations; they became what I will refer to as a “donor couple”.
The fact that neither contributed their own reproductive material
to the process is irrelevant to their status as a donor couple.
 Importantly, donor couple consent for purposes of s. 8(3) of
the AHRA is governed by s. 10(2) of the Consent Regulations:
10(2) If the donor is a couple, the consent of each spouse or common-law
partner must be compatible in order for the consent of the donor to comply
with the requirements of this Part.
 This means that if the consent of a donor couple is to satisfy
the requirements of s. 8(3) of the AHRA — “[n]o person shall
make use of an in vitro embryo for any purpose unless the donor
has given written consent, in accordance with the regulations”
(emphasis added) — each spouse or each common-law partner
must consent to the same use of the embryo. They must have
a meeting of the minds in terms of how the embryo will be used.5
Although the Ontario contract reflects the donor couple’s “
compatible” consent to the respondent’s use of the embryo in the
event of divorce, a consent that was provided over seven years
ago, the appellant has changed his mind and wishes to now withdraw that consent. If he is permitted to do so, the required
compatibility of consent will be destroyed.
5 On October 27, 2018, Canada Gazette, Part I, Volume 152, Number 43:
regulations amending the Assisted Human Reproduction (Section 8 Consent)
Regulations provided notice of intent to amend the Consent Regulations,
including to change the text of s. 10(2) to the following: “If the donor is
a couple, the in vitro embryo shall only be used for the purposes to which both
spouses or common-law partners have consented” (emphasis added). In my view,
the meaning of this section remains unchanged on the proposed new wording.
If anything, the proposed changes merely clarify the need for both individuals
in a donor couple to agree upon the same use for an embryo.