S.H. v. D.H.
[Indexed as: H. (S.) v. H. (D.)]
Ontario Reports
Court of Appeal for Ontario
Pepall, Hourigan and Fairburn JJ.A.
May 31, 2019
146 O.R. (3d) 625 | 2019 ONCA 454
Case Summary
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 appealed.
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.
Cases Referred To
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42
Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26
Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54
Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, 1997 CanLII 357 (SCC)
Reference re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457, 2010 SCC 61
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC)
Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, 2014 SCC 53
Statutes Referred To
Assisted Human Reproduction Act, S.C. 2004, c. 2, ss. 5, 6, 7(2)(b), (d), 8(3), 61
Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 91(27)
Rules and Regulations Referred To
Authorities Referred To
Busardò, Francesco Paolo, et al., "The Evolution of Legislation in the Field of Medically Assisted Reproduction and Embryo Stem Cell Research in European Union Members" (2014), BioMed Res. Int.
Côté, Pierre-André, The Interpretation of legislation in Canada, 4th ed. (Toronto: Carswell, 2011)
Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
Fridman, G.H.L., The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011)
Government of Canada, "Assisted Human Reproduction and Informed Consent", Nov. 10, 2006, Library of Parliament, PRB 06-35E; Debates of the Senate, 2d Sess., 37th Part., Vol. 140, Issue 94 (November 4, 2003)
Government of Canada, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of Government Services Canada, 1993)
House of Commons Standing Committee on Health, Assisted Human Reproduction: Building Families (Ottawa: Public Works and Government Services Canada, December 2001)
Howell, Shirley Darby, "The Frozen Embryo: Scholarly Theories, Case Law, and Proposed State Regulation" (2013), 14:3 DePaul J. Health Care L. 407
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014)
Waddams, S.M., The Law of Contracts, 6th ed. (Aurora, Ont.: Canada Law Book, 2010)
APPEAL
From the judgment of Del Frate J. (2018), 142 O.R. (3d) 61, 2018 ONSC 4506 (S.C.J.).
Counsel:
Shantona Chaudhury and Brodie Noga, for appellant.
John J. Adair, for respondent.
The judgment of the court was delivered by
Overview
1The parties are divorced. When they were still married, they decided to use in vitro fertilization ("IVF") in their efforts to have a child. IVF involves the combining of sperm and ova outside of the human body to create embryos that can later be transferred to a uterus to continue developing. The parties contracted in 2011 with a lab in the United States to create the in vitro embryos. The lab combined the reproductive material from two anonymous individuals whom the parties had selected and four in vitro embryos resulted, two of which were viable. Neither party contributed their own reproductive material to the embryos. The viable embryos were then frozen in a process known as cryopreservation.
2Shortly after their creation, the embryos were sent to a lab in Canada and one was implanted into the respondent. She became pregnant and a child was born. Shortly after the birth of that child, who is now six years of age, the couple separated and eventually divorced. They share custody of their child.
3The dispute that lies at the centre of this case is about the use that can be made of the remaining cryopreserved in vitro embryo. The respondent (ex-wife) wishes to have that embryo implanted into her. Any child resulting from that process would be a full biological sibling to the parties' child. The respondent says that if the IVF is successful, and a child is born, she will not seek any form of child support from the appellant. Although the appellant (ex-husband) consented to the respondent's use of the embryo when it was created, he has changed his mind and now wishes to withdraw his consent. At this stage, the appellant is only prepared to have the embryo donated to a third party.
4The appellant wrote to the Canadian lab storing the embryo and withdrew his consent to the respondent's use of the embryo. In light of that written withdrawal of consent, the lab said that it would not release the embryo to the respondent without a court order. Accordingly, the respondent brought a motion seeking 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. This is an appeal from that decision. I conclude that neither contract nor property law principles govern in this case.
5For the reasons that follow, I would allow the appeal. This decision turns on the interpretation and application of the governing legislation and regulations. In some jurisdictions, where the state has not regulated in the field of reproductive technology, private law contract principles apply. In Canada, however, Parliament has imposed a consent-based, rather than a contract-based, model through legislation and regulation. As I will explain, the correct interpretation and application of the relevant legislative framework determines the result in this case.
6Many provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 ("AHRA"), and the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 ("Consent Regulations"), are engaged in this decision and discussed in detail later on. The most central are the following: (1) s. 8(3) of the AHRA prohibits the use of an in vitro embryo for any purpose without regulation-compliant written consent; (2) 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 (3) 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.
7For 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 unmitigated right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive in this case.
The Motion Judge's Decision: Contract and Property Law
8The motion judge's task was a difficult one. This was the first case to consider the disputed post-separation use of an in vitro embryo made up of donated reproductive material. Unfortunately, neither party argued the case before the motion judge with reference to the Consent Regulations. Indeed, it does not appear that those regulations were even brought to the motion judge's attention. Instead, both parties took the position that the embryo should be treated as property governed by contract law. In light of those positions, it is unsurprising that the motion judge decided the case as he did.
9The motion judge first looked to the contracts that the parties entered into with reproductive companies in both Georgia and Ontario. The parties signed two contracts with Reproductive Biology Associates ("RBA") in Georgia, the company that actually created the embryos. The first RBA contract dealt with the procedure that would be followed in creating and transferring the embryos. The second RBA contract related to the cryopreservation of the embryos. That contract reflects the parties' agreement that the frozen embryos would be donated if the parties were unable to make a decision as to their disposition in the future. In the event of divorce, the parties acknowledged that they understood that "the legal ownership of any stored embryo(s)" would be "determined in a property settlement" and released as directed "by order of a court [of] competent jurisdiction".
10The parties also signed a contract with ISIS Regional Fertility Centre (now known as the Reproductive Care Centre ("RCC")) in Mississauga, Ontario. The Ontario contract allows for the cryopreserved embryos to be thawed and used for the couple's "own reproductive use". The contract names the respondent as the "patient" and the appellant as the "partner". The parties contracted that, in the event of "divorce or legal separation between the patient and her partner", the RCC would "respect the patient's wishes". The Ontario contract also provides for a withdrawal of consent as follows:
Prior to providing this consent, we received and reviewed written information from ISIS [now RCC] confirming that our cryopreserved in vitro embryo(s) would be used only for the purposes which we authorized in this Consent and that we could withdraw our consent to the use of our in vitro . . . embryo(s) at any time provided that we did so in the manner explained.
(Emphasis added)
11Ultimately, the motion judge held that the embryo was property covered by the contracts. As the parties specifically contracted in Ontario to "respect the [respondent's] wishes" upon divorce, the motion judge concluded that it would be contrary to contract law to overtake those wishes now. He did not specifically address why the withdrawal of consent provision in the Ontario contract did not apply so as to permit the appellant to withdraw his consent.
12The motion judge was aware of s. 7(2)(b) of the AHRA, prohibiting the purchase and sale of embryos, but made the observation that an embryo cannot be split. In the end, he resolved that the embryo should be released to the respondent for her use, upon her reimbursing the appellant for half of the cost of creating the embryo. As found by the motion judge, the total cost for creating all of the embryos was US$11,500 and half of the cost of one was US$1,438.
13For the following reasons, I arrive at a different conclusion than the motion judge.
The Parties' Positions on Appeal
14The respondent contends that the parties turned their minds to what would happen to the embryo in the event of divorce and that the appellant consented under the Ontario agreement to have the respondent's wishes prevail. She says that this was a lawful contract from which the appellant cannot now resile. Her position accords with the motion judge's finding that the appellant signed the Ontario contract with his eyes wide open, agreeing that in the event of divorce or legal separation "the Agent shall . . . respect the [respondent's] wishes".
15The appellant does not dispute that he signed that contract. He does not suggest that he did not understand what he was signing or that he was under any form of duress, undue influence or mental incapacity at the time that he signed. Rather, he accepts that his desire to withdraw his consent arises from a change of mind. His position is that changing his mind is precisely what the AHRA and Consent Regulations permit him to do.
16The appellant argues that, despite their current status as ex-spouses, the parties together remain the "donor" of the in vitro embryo. As the parties together remain the embryo's donor, together they must consent to the same use of the embryo before the embryo may be put to that use. The appellant contends that, in a situation like this one, where the embryo's donor is a couple, s. 14(3) of the Consent Regulations permits either person within the couple to withdraw consent to the embryo's use. Section 14(3) reads:
14(3) If the donor is a couple, the consent of the donor may be withdrawn by either spouse or common-law partner.
(Emphasis added)
17The 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.
18The 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.
(Emphasis added)
19The 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.
20Even 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.
Analysis
21I find that a proper application of the principles of statutory interpretation leads to the conclusion that s. 14(3) of the Consent Regulations grants the appellant the right to withdraw his consent to the respondent's use of the embryo and s. 1(2) does not deny him that right. I further conclude that a contract cannot preclude the appellant from resorting to the protections afforded to him by the combined effect of the statute and its animating regulations.
(1) Introduction to the AHRA and Consent Regulations: Criminal Law
22There are few things as fundamental to the human experience as the decision whether or not to have children. New reproductive technologies have expanded the availability of that choice.
23With the development of new reproductive technologies came deep moral and ethical issues. These issues have been, and continue to be, the subject of extensive and important public debate. By the 1980s, Canadians were alive to the social, moral and ethical challenges arising from new forms of reproductive technology. In 1989, the Royal Commission on New Reproductive Technologies (the "Baird Commission") was established, with the mandate of examining how those technologies should be handled in Canada. The commission's work resulted in what is commonly referred to as the Baird Report: see Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of Government Services Canada, 1993).
24The Baird Report concluded that there was an urgent need for strong, well-defined government regulation to set clear boundaries for the use of reproductive technologies. The general acceptance of that conclusion culminated in the AHRA's enactment.
25In its original form, the AHRA governed a broad range of reproductive technologies. Many of the provisions were designed to avoid abuse of those technologies in a way that "might damage individuals -- both existing and yet to be conceived -- and ultimately society": Reference re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457, 2010 SCC 61, at para. 4. For instance, s. 5 of the AHRA prohibits human cloning, altering the genome of human cells and transplanting reproductive material from non-human life forms into human beings and vice versa. Sections 6 and 7 prohibit payment for surrogacy, set a minimum age requirement for surrogacy and prohibit the purchase and sale of in vitro embryos. And s. 8 prohibits the use of reproductive material and in vitro embryos without consent.
26Section 8(3) of the AHRA and the Consent Regulations that amplify it lie at the heart of this appeal. Section 8(3) reads:
8(3) No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.
(Emphasis added)
27While much of the AHRA was struck down as ultra vires the federal government's criminal law power, s. 8 of the AHRA survived that constitutional attack because it falls squarely within Parliament's power under s. 91(27) of the Constitution Act, 1867 to legislate in the area of criminal law: Reference re AHRA, at paras. 48-51, 89-92, 110-112, 288-291. Accordingly, s. 8(3) constitutes a criminal offence, a conviction for which is accompanied by a potentially substantial sentence under s. 61 of the AHRA. To avoid criminality under s. 8(3) of the AHRA, a person who uses an in vitro embryo must have the prior "written consent" of the embryo's "donor", which consent is provided "in accordance with the regulations".
28Part 3 of the Consent Regulations that came into effect after the AHRA was proclaimed in force governs consent for purposes of s. 8(3) of the AHRA. Neither s. 8(3) of the AHRA nor the Consent Regulations were considered by the motion judge. The nub of the parties' dispute in this court arises from their disagreement over whether those regulations permit the appellant to withdraw the consent that he provided when the parties were still married, a consent that specifically granted the respondent the unilateral right to use the embryo as she wished in the event of the couple's divorce.
29Relying upon the principles of statutory interpretation, I will explain why the provisions, read as a whole, make it clear that the appellant may withdraw his prior written consent. I will then go on to explain why the appellant did not contract out of his right to do so.
(2) The Principles of Statutory Interpretation
30The modern approach to statutory interpretation requires the court to read the words of a statute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC), at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, both citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at 87. A "textual, contextual and purposive analysis" must be applied to find a meaning that is harmonious with the entire Act: Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601, 2005 SCC 54, at para. 10. The subject provisions must be considered within the statute as a whole.
31Where the relevant provisions are within a regulation, then the regulation must be read concurrently with, and in the context of, the enabling legislation: Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, 1997 CanLII 357 (SCC), at para. 37; State Farm Mutual Automobile Insurance Co. v. Old Republic Insurance Co. of Canada, 127 O.R. (3d) 465, 2015 ONCA 699, at para. 68; Bristol-Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26, at paras. 37-38. Regulations must also be interpreted in accordance with the modern principle, and will generally be interpreted using the same rules and techniques as statute law, albeit never losing sight of the context of the enabling provisions that give rise to the regulations that complete and implement the statutory scheme: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at 13.18; Pierre-André Côté, The Interpretation of legislation in Canada, 4th ed. (Toronto: Carswell, 2011), at 26-27.
(3) Applying the Principles of Statutory Interpretation
32Applying the modern principles of statutory interpretation to the regulatory and statutory scheme as a whole, I conclude that in the circumstances of this case, the appellant may withdraw his consent to the respondent's use of the embryo. The appellant is not bound to his prior written consent, distilled in the form of an otherwise lawful contract, because the statutory and regulatory provisions fundamentally preserve a donor's inherent right to change her or his mind about in vitro embryo use.
33Four broad considerations lead me to this conclusion: (i) the critical role that consent plays in the statutory scheme; (ii) the fact that donor couple status survives separation and divorce where the former partners have the same genetic relationship to the embryo (either both are genetically connected or both are not genetically connected to the embryo); (iii) the fact that the lawfulness of donor consent to embryo use is predicated on the donor knowing about the ability to withdraw that consent; and (iv) the plain meaning of s. 1(2).
(i) Consent Plays a Central Role in the Statutory Scheme
34Understanding the role that consent plays in the realm of reproductive technology at large in Canada, and more specifically in the realm of in vitro embryo use, provides an important context against which the operative provisions must be considered.
35The crucial importance placed upon consent in the area of reproductive technology, and the requirement that it be voluntary and informed, was squarely addressed in the lead-up to the enactment of the AHRA. For instance, as noted in the House of Commons Standing Committee on Health, Assisted Human Reproduction: Building Families (Ottawa: Public Works and Government Services Canada, December 2001) (Chair: Bonnie Brown), at 6:
[I]nformed choice can lead to either informed refusal or informed consent. We want individuals participating in assisted human reproduction to be able to choose freely on the basis of full information of risks as well as benefits pertaining to medical, legal, ethical, social, or psychological implications. For the resulting children, they must be able to rely on the involved adults. For participating adults, this can mean having full understanding of short-term as well as long-term ramifications including the consequences for others who may be involved. We want to ensure that consent is given freely for all aspects of assisted human reproduction such as treatment, donation, and research. We also want continual assessment of the consent that is given and an acknowledgement that, for most activities, consent may be withdrawn at any time.
(Emphasis added)
36Free and informed consent lies at the heart of the entire AHRA, "central to the scheme established by the Act" and "intimately tied to moral concerns": Reference re AHRA, at para. 142. The statement of principles in s. 2(d) of the AHRA underscores the statutory emphasis on consent:
[T]he principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies[.]
(Emphasis added)
37Parliament's deliberate decision to criminalize the use of reproductive material and in vitro embryos in the absence of written donor consent reflects deep moral concerns about human reproduction and its intersection with human autonomy. Those moral concerns were front and centre when considering whether it was acceptable for the criminal law to govern donor consent under s. 8 of the AHRA. As McLachlin C.J.C. said in Reference re AHRA, at para. 90:
At the heart of s. 8 lies the fundamental importance that we ascribe to human autonomy. The combination of the embryo's moral status and the individual's interest in his or her own genetic material justify the incursion of the criminal law into the field of consent. There is a consensus in society that the consensual use of reproductive material implicates fundamental notions of morality. This confirms that s. 8 is valid criminal law.
38It is against that statutory context -- where consent plays such a pivotal role in protecting human autonomy -- that the legal contours of donor consent and, more importantly for this case, donor withdrawal of consent to in vitro embryo use must be considered. The idea that donor consent can become frozen in time, rendered unsusceptible to changes of mind, belies the central importance placed upon consent in the statutory scheme.
(ii) Donor Couple Status Survives Separation and Divorce in Situations Involving Equal Genetic Relationships to the Embryo
39Recall that, to avoid criminal conduct through embryo use, s. 8(3) of the AHRA requires the written consent of the "donor". Recall also that s. 14(3) of the Consent Regulations say that "[i]f the donor is a couple, the consent of the donor may be withdrawn by either spouse" (emphasis added). Consequently, in determining whether the appellant may withdraw his consent, it is first necessary to determine whether he is a "donor". I conclude that the answer to this question is yes and that, despite their separation and divorce, the parties together remain the in vitro embryo's "donor" today.
40Section 10(1) of the Consent Regulations governs donor status. It stipulates that a "donor" is an "individual or individuals for whose reproductive use an in vitro embryo is created" (emphasis added). Where an individual has "no spouse or 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 Consent Regulations.
41Section 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.
42Importantly, 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.
(Emphasis added)
43This 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. 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.
44While s. 10(2) governs how donor couple consent is achieved, s. 14(3) governs how donor couple consent can be later undone. This raises the question: despite their separation and divorce, do the parties remain a donor couple today? The answer is yes.
45Following separation or divorce, the Consent Regulations only remove donor status in one scenario that does not apply to this case. Where a former common-law or married couple had an embryo created using reproductive material from only one of the individuals in the couple, combined with the reproductive material of a third party, upon relationship breakdown, s. 10(3) of the Consent Regulations deems the genetically contributing former spouse or common-law partner to be the embryo's sole donor. Accordingly, after separation or divorce, the individual in the former couple who is genetically connected to the embryo will move from donor couple status under s. 10(1)(b) to single donor status under s. 10(1)(a) of the Consent Regulations. The non-genetically contributing individual in the former couple will completely lose his or her donor status.
46Section 10(3) of the Consent Regulations is the only provision that operates to strip donor status. The provision exists because donor status is not automatically stripped by separation and/or divorce. Accordingly, where former spouses or common-law partners stand in the same genetic position vis-à-vis an embryo (either both individuals are genetically connected to it, or neither individual is genetically connected to it), separation and/or divorce do not change the donor couple status.
47In this case, the parties have the same genetic status in relation to the disputed embryo -- neither is genetically connected to that embryo. Consequently, their donor couple status remains intact, meaning that they together remain the disputed embryo's donor.
48Particularly in light of the importance placed upon consent in the statutory and regulatory scheme as a whole, the appellant's continued status as a donor goes a significant distance to assisting in answering whether s. 14(3) permits him to withdraw his consent to the respondent's use of the embryo. An interpretation of s. 14(3) that could preclude a person who remains part of the donor couple from having an ongoing say about how the donor couple's embryo may be used would run counter to the legislation's emphasis on consent.
49Forcing donors to stick with the decisions that they made at a very different point in their lives, simply by virtue of the fact that their marriages did not continue, could have implications for donors under the statute and regulations. This concern is perhaps best illustrated by considering a donor couple where both individuals in the couple contribute their genetic material to the creation of embryos. In that situation, neither person would lose their donor status after separation and/or divorce. Yet the respondent's position would result in preventing even those genetically contributing former spouses -- each with an equivalent genetic connection to the embryo -- from withdrawing their consent to the use of an embryo. This could lead to situations where people could have genetically related children born to ex-spouses years after marriage breakdown.
50I do not accept an interpretation of s. 14(3) that would lead to this incongruous result, one that is antithetical to the emphasis placed upon donor consent and its essential relationship to the ability to withdraw consent.
(iii) The Lawfulness of Donor Consent Rests on the Donor Knowing That the Consent Can Be Withdrawn
51The ability of a former spouse who is still part of the donor couple to withdraw consent under s. 14(3) is also apparent from the legal requirements for obtaining a legally compliant consent in the first place. Those requirements include that the donor be informed of his or her right to withdraw consent prior to the use originally consented to.
52Section 13(1) requires that before an in vitro embryo is used, the person wishing to make use of it have the written consent of the embryo's donor, stating that it may be used for that purpose. Importantly, the lawfulness of that written consent relies on meeting the requirements of s. 12 of the Consent Regulations, including ss. 12(b) and 12(c)(i).
53Section 12 requires that before an in vitro embryo is used, the person wishing to make use of it must have a document signed by the embryo's donor, specifically acknowledging that before the donor consented, the donor was informed in writing that, if he or she wished to withdraw consent, that the withdrawal would have to be in writing (s. 12(b)); and that the withdrawal of consent would only be "effective" if the person intending to make use of the in vitro embryo "is notified in writing of the withdrawal" before the use of the embryo (s. 12(c)(i)).
54Read together, ss. 12 and 13 of the Consent Regulations make clear that at the time that donors initially give their consent, they must be informed in writing about how to withdraw that consent. Further, the donors must acknowledge in writing that they have been informed of this fact. And, even further, anyone making use of an in vitro embryo must have that written donor acknowledgement in hand before using the embryo.
55These provisions demonstrate the inextricable link between donor consent and withdrawal of consent. They eschew any notion that donor consent becomes crystallized at the moment it is initially given. Instead, the provisions clearly place donor consent on a continuum from the time an embryo is created to the time it is used. In order to extract a fully informed consent, the donor must be informed that at any point along that continuum, the donor can change her or his mind by withdrawing consent in writing. These provisions are entirely consistent with the central importance of consent in the area of reproductive technology.
56If s. 14(3) were to be interpreted as the respondent suggests, it would mean that many donors would have provided their initial consent on the understanding that they could withdraw that consent, only to be told later that they could not do so because their marital status had changed. Such an approach would shake the very foundation of the original consent, undermining its voluntary and informed nature. The original consent would have been extracted on the basis of misinformation. I would not accept an interpretation of the regulations that would give rise to that inherently unfair result.
(iv) The Plain Meaning of s. 1(2)
57This leaves me to address the respondent's submission that s. 1(2) of the Consent Regulations specifically deprives the appellant of the ability to withdraw his consent under s. 14(3) because he is no longer a "spouse" within the meaning of that term. I do not agree with the respondent's interpretation of s. 1(2) or with the suggestion that it applies to s. 14(3).
58For ease of reference, recall that s. 14(3) applies to donor couples and allows the "consent of the donor [to be] withdrawn by either spouse". Recall also that s. 1(2) removes from the term "spouse", "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".
59I start by observing that s. 1(2) does not define the term "spouse". Rather, it excludes a specific group of people from that term's reach: those who are in fact still married but whose marriages have broken down. In this case, the parties are not simply living separate and apart and their marriage has not simply broken down. Rather, they are no longer married. They have not been married for years. Accordingly, on their plain meaning, the words of s. 1(2) do not extend to this case.
60This raises the questions, can s. 1(2) be offered an interpretation that exists harmoniously with the context, scheme and purpose of the AHRA and Consent Regulations and what is s. 1(2) intended to address? The answer is found in the temporal restriction placed upon s. 1(2) -- "the term spouse does not include a person who, at the relevant time, lives separate and apart" (emphasis added).
61The respondent's position, that s. 1(2) excludes from the term "spouse" all those who are living separate and apart because of marital breakdown, fails to grapple with the temporal qualification embedded within that provision: "at the relevant time". On the respondent's interpretation of the provision, those words would be rendered meaningless. Remove them and the respondent's suggested interpretation of s. 1(2) would remain unchanged. This approach would offend the principle of statutory interpretation that presumes that each word in a provision has meaning and plays a role in advancing the legislative purpose: Sullivan, at 8.23.
62The appellant suggests that the words "at the relevant time" have a very specific meaning and drive the purpose for which the provision exists. I agree.
63The purpose of s. 1(2) is not to deprive donors of in vitro embryos of the ability to withdraw their consent because of marital breakdown or divorce. The provision is designed to protect those people who are technically married, but living separate and apart because of marital breakdown, from becoming a donor couple under s. 10(1)(b) in the first place, simply by virtue of their marital status.
64This reasoning is easily understood if one takes a hypothetical situation into account. Imagine two people who are married, but whose marriage broke down years ago. While they have not obtained a divorce, they moved apart and have not spoken for years. Now imagine that one of those estranged spouses decides to pursue IVF and has an embryo created. Without the operation of s. 1(2), donor couple status could be unwittingly bestowed upon the estranged spouses by virtue of s. 10(1)(b), imposing donor status on a "couple who are spouses . . . at the time the in vitro embryo is created" (emphasis added).
65At a minimum, s. 10(1)(b) could create serious confusion about donor status in the context of separated, but still married couples. Section 1(2) clears up any potential confusion. The reference to "the relevant time" within s. 1(2) must be read as the time that the embryo is created. Notably, the wording of s. 10(1)(b) dovetails with that approach, imposing donor couple status on couples "who are spouses . . . at the time that the in vitro embryo is created".
66Section 1(2) is a clear means by which to ensure that those whose marriages have broken down do not become donor couples simply by virtue of the fact that they have not obtained divorces. Only in this way do both spouses receive clear protection from unintended donor couple status.
67By interpreting s. 1(2) in this way, an interpretation that respects the temporal restriction contained within the provision, the statute and Consent Regulations work as a harmonious whole.
(v) Conclusion
68Reading the words of the AHRA and the Consent Regulations as a whole, I conclude that s. 14(3) must be read as permitting either person within a donor couple to withdraw their consent to in vitro embryo use. The use of the term "spouse" in s. 14(3) was not intended to preclude divorced spouses, 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, I conclude that, regardless of one's changed marital status, while donor status continues, so too does the right to withdraw consent. The use of the term "spouse" in s. 14(3) is, therefore, nothing more than a short-hand way in which to make clear that either party within the donor couple -- a donor couple that survives divorce in a case like this -- may withdraw their consent.
(4) The Parties Could Not Contract Out of the s. 14(3) Right to Withdraw Consent Prior to Use
69The respondent maintains that, even if the Consent Regulations permit someone in the appellant's position to withdraw consent, the appellant contracted out of that right when he signed the Ontario contract. The appellant agreed in the Ontario contract that, in the event of divorce, the respondent's "wishes" about embryo use would be respected. The respondent says that this court should hold him to that contract.
70Consent in the legislative context involving reproductive technology is fundamentally at odds with contract law. The first permits unilateral changes of heart that the second precludes. The very essence of s. 8(3) of the AHRA and the Consent Regulations is to allow for an individual's right to consent, a right that is inherently linked to respect for the consenter's state of mind. It would undermine the notion of consent embodied in the AHRA and the Consent Regulations to freeze it at a specific moment in time and preclude changes of mind, changes that may arise from changed life circumstances inherent to the human condition.
71Section 8 of the AHRA reflects deep societal respect for donor consent in the context of reproductive technology. Indeed, that is why it survived constitutional scrutiny in Reference re AHRA: see McLachlin C.J.C., at paras. 10, 156; and Cromwell J. at paras. 291, 294. Section 8(3) makes it a criminal offence to use an in vitro embryo without consent and, therefore, the absence of consent is an essential element of that criminal offence. Accordingly, were the respondent to go ahead and use the embryo in the face of the appellant's lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.
72An individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law. Any effort to do so is void ab initio: Transport North American Express Inc. v. New Solutions Financial Corp., [2004] 1 S.C.R. 249, 2004 SCC 7, at para. 22; G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at 364-68; S.M. Waddams, The Law of Contracts, 6th ed. (Aurora: Canada Law Book, 2010), at 419-25. Accordingly, 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 AHRA and the Consent Regulations. To the extent that the Ontario contract purports to do that, it is void.
73In any event, I do not read the Ontario contract as doing that. As previously noted, the Ontario contract on which the respondent relies allowed for the withdrawal of the appellant's consent. As set out above, it included the following clause:
Prior to providing this consent, we received and reviewed written information from ISIS [now RCC] confirming that our cryopreserved in vitro embryo(s) would be used only for the purposes which we authorized in this consent and that we could withdraw our consent to the use of our in vitro . . . embryo(s) at any time provided that we did so in the manner explained.
(Emphasis added)
74Properly applied, the principles of contract interpretation specify that a contract must be construed as a whole: Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, 2014 SCC 53, at paras. 63-64. The Ontario contract clearly allowed for withdrawal of consent. Indeed, it allowed for precisely what the Consent Regulations require. Accordingly, although I conclude that one cannot contract out of the ability to withdraw consent, this contract did not purport to do so.
Conclusion
75I would grant the appeal and set aside the order below.
76The appellant is not seeking costs of the appeal but reserves the right to seek his costs of the motion giving rise to the appeal. We have been provided with no information about the costs order that was made. If the parties are unable to agree on costs, the appellant should provide brief written submissions within 14 days of release of this judgment. The respondent will have seven days to respond to those submissions.
Appeal allowed.
APPENDIX A: KEY STATUTORY PROVISIONS AND REGULATIONS
Assisted Human Reproduction Act, S.C. 2004, c. 2
Declaration
2. The Parliament of Canada recognizes and declares that
(d) the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies[.]
Definitions
3. The following definitions apply in this Act.
donor means
(b) in relation to an in vitro embryo, a donor as defined in the regulations.
Use of Reproductive Material Without Consent
8(1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.
Posthumous Use Without Consent
(2) No person shall remove human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.
Use of In Vitro Embryo Without Consent
(3) No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.
Offence and Punishment
61. A person who contravenes any provision of this Act -- other than any of sections 5 to 7 and 9 -- or of the regulations or an order made under subsection 44(1) is guilty of an offence and
(a) is liable, on conviction on indictment, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding five years, or to both; or
(b) is liable, on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years, or to both.
Regulations of Governor in Council
65(1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations
(a) defining donor, in relation to an in vitro embryo;
(b) for the purposes of section 8, respecting the giving of consent for the use of human reproductive material or an in vitro embryo or for the removal of human reproductive material[.]
Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137
Interpretation
(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.
PART 3: Consent Given Under Subsection 8(3) of the Act
10(1) Subject to section 15, in this Part, donor means the following individual or individuals for whose reproductive use an in vitro embryo is created:
(a) the individual who has no spouse or common-law partner at the time the in vitro embryo is created, regardless of the source of the human reproductive material used to create the embryo; or
(b) subject to subsection (3), the 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.
(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.
(3) In the case of an in vitro embryo created using human reproductive material from only one of the individuals in the couple that was the donor of the embryo at the time it was created, that individual becomes the donor of the embryo under paragraph (1)(a) if, before the use of the embryo, the individual is no longer a spouse or common-law partner in the couple.
11. This Part applies in respect of a consent given under subsection 8(3) of the Act to make use of an in vitro embryo.
12. Before a person makes use of an in vitro embryo, the person shall have a document signed by the donor of the embryo stating that, before consenting to the use of the embryo, the donor was informed in writing that
(a) the in vitro embryo will be used in accordance with the donor's consent for one or more of the following purposes, namely,
(i) the donor's own reproductive use,
(b) if the donor wishes to withdraw their consent, the withdrawal must be in writing; and
(c) the withdrawal is effective only if the person who intends to make use of the in vitro embryo is notified in writing of the withdrawal
(i) in the case of an in vitro embryo to be used for the purpose mentioned in subparagraph (a)(i), before the use of the embryo[.]
13(1) Before a person makes use of an in vitro embryo, the person shall have the written consent of the donor of the embryo stating that the embryo may be used for one or more of the following purposes:
(a) the donor's own reproductive use[.]
14(1) If a donor wishes to withdraw their consent, the withdrawal must be in writing.
(2) The withdrawal is effective only if the person who intends to make use of the in vitro embryo is notified in writing of the withdrawal
(a) in the case of an in vitro embryo to be used for the purpose mentioned in paragraph 13(1)(a), before the use of the embryo[.]
(3) If the donor is a couple, the consent of the donor may be withdrawn by either spouse or common-law partner.
