Ontario court awards woman ownership of embryo called 'property' in precedent-setting case

A court in Sudbury, Ont., has awarded an embryo to a woman in a case involving her ex-husband, in what is being called a precedent-setting decision because the embryo has no biological connection to the couple.

Two childhood friends decided to get married in 2009 to have and raise children together, but the man didn't want his sperm used and the woman's eggs weren't suitable. So three years later, they purchased eggs and sperm from a business in the United States for $ 11,500 US, and two good embryos were created through in-vitro fertilization. 

In December 2012, the woman gave birth to a son. Eight days later, the marriage dissolved and both sides claimed ownership of the second embryo in the divorce.

The judge's decision awarding the embryo to the woman, who is now 48, was released last week.

It hinged on a consent form from a fertility clinic in southern Ontario on which the couple indicated the "patient's wishes" would be honoured in case of divorce. The form describes the woman receiving the embryo as "the patient."

Where are we at with fertility treatment and law in Canada, and where are we headed? CBC's Christine Birak put your questions to a fertility doctor and a lawyer about access to fertility treatment 40 years after the first test tube baby was born.

"The justice said you're not allowed to change your mind," said Dale Brawn, lawyer for the woman.

"To paraphrase the judge's words, no buyer's remorse. When you sign a contract saying how an embryo will be used, then that contract is enforceable."

'When you sign a contract saying how an embryo will be used, then that contract is enforceable,' says Dale Brawn, lawyer for the 48-year-old woman awarded the embryo that had no biological ties to herself or her ex-husband. (Erik White/CBC)

The man's lawyers had argued that the consent form from the egg bank in the United States trumped the one filled out at the Canadian fertility clinic.

They also argued that the man paid for the embryo, so it was his property, and that the woman "refuses to be gainfully employed," so didn't have the finances to support a larger family.

"This is to my mind the first time there is a clear decision in Canada that comes right out and says when there is no genetic connection, embryos are to be treated as property," said Toronto fertility lawyer Sara Cohen, commenting about the case.

"(We're) slowly building toward this understanding that we're going to deal with embryos, perhaps, as a less special category."

Brawn said his client plans to carry the second embryo and have a second child. She doesn't plan to seek child support.

"What really strikes me is what a blunt instrument the law is for dealing with complex issues such as this," said University of Toronto bioethicist Kerry Bowman.

Bowman doesn't necessarily disagree with the ruling, but wonders if consent forms are the best way to make decisions in such complex, emotional cases.

"True consent from an ethical point of view would be a deep, deep reflection on some of these questions."

Bioethicist Kerry Bowman, who teaches at the University of Toronto, doesn't necessarily disagree with the ruling, but wonders if consent forms are the best way to make decisions in such complex, emotional cases. (Craig Chivers/CBC)

Cohen said this also sets the stage for landmark embryo custody cases that lawyers such as herself have been waiting for — when a court makes a clear decision on who gets an embryo that has a biological connection to one or both sides in a divorce.

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