Introduction

A previous blog dealt with this federal legislation arising in a decision of the British Columbia Supreme Court (BCSC). The opening there was as follows:

Assisted Human Reproduction or Assisted Reproductive Technology (“ART”) sounds like the inspiration for a dystopian novel or a Netflix Series. Historically the human body, its parts and products, have not been considered property in law. Each of us has always assumed that such things were personal and would be used with our consent based on our personal decision making as we lived our lives. There was, in addition, the scientific inability to make use of such material. The world’s first test tube baby, Louise Joy Brown, was not born until 1978 in England.

The first and only Canadian legislation dealing with ART was the Assisted Human Reproduction Act (“AHRA”) proclaimed in 2004. One of its objects was the principle of free and informed consent as a fundamental condition of the use of ART. It, therefore, prohibited the use of human reproductive material for the purposes of creating an embryo unless the donor had given their written consent. This prohibition is premised on the legal conclusion that there is some form of property in the material and that it belongs to the individual from whom it came. What then if the donor is unable to provide that necessary written consent?

A Presage

The reference to a Netflix dystopia came true given the recent release of   “I Am Mother” on Netflix. Here, human reproduction has become entirely automated in the hopes of producing a better world populated by only the “best” people as determined by an algorithm. Consent to do so was not likely present.

Recent Ontario Decision

The issue of the use of ART without consent came before a judge of the Ontario Superior Court of Justice (ONSC) in S.H. v. D.H. The parties were now divorced. While married, they had contracted with an American lab to create embryos to further their wish to have children. The two viable embryos produced were not the product of their reproductive material, but rather from anonymous donors the couple had selected. The embryos were then shipped to a Canadian lab, where one was implanted in the Applicant wife resulting in the birth of a child. The couple later divorced.

The wife now wished to have another child and use the remaining embryo. The husband was not willing to consent to such use but was agreeable to the fetus being donated to a third party. The Canadian lab was unwilling to assist the wife without a court order given the requirement for written consent in the AHRA. The wife brought her application. She was successful based on the motions judge’s analysis of contract and property law.

The Appeal

The husband successfully appealed to the Ontario Court of Appeal (ONCA). The result was based on the wording of the AHRA and the Regulations.

Many provisions of the AHRA and the Assisted Human Reproduction (Section 8 Consent) Regulations are engaged in this decision. The most central are the following:

  • S. 8(3) of the AHRA prohibits the use of an in vitro embryo for any purpose without regulation-compliant written consent;
  • S. 10(1)(b) of the Consent Regulations defines the term “donor” to include a couple who are spouses at the time the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo; and
  • S. 14(3) of the Consent Regulations provides that if the donor is a couple, either spouse may withdraw consent before the embryo is used.

For the reasons that follow, I conclude that the parties together remain the disputed embryo’s “donor” under s. 10(1)(b) despite their separation and divorce, and, even though they are no longer married, s. 14(3) allows the appellant to withdraw his consent to the respondent’s use of the embryo. The appellant’s absolute right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive in this case.

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