S.H. v. D.H., 2018 ONSC 4506

S.H. v. D.H.

[Indexed as: H. (S.) v. H. (D.)]

Ontario Reports Ontario Superior Court of Justice, Del Frate J. July 25, 2018 142 O.R. (3d) 61 | 2018 ONSC 4506

Case Summary

Family law — Property — Embryos — Parties purchasing donated eggs and sperm from Georgia company before their acrimonious divorce — Ontario fertility centre implanting one of two viable embryos in respondent and respondent giving birth to parties' son — Respondent wishing to have second embryo implanted after divorce — Applicant not consenting — Dispute governed by contracts into which parties entered freely — Contract with Ontario fertility centre providing that patient's wishes were to be respected in event of separation — Respondent's motion for order that would permit clinic to implant second embryo in her being granted — Applicant entitled to reimbursement for his financial interest in half of second embryo.

The parties purchased donated eggs and sperm from a Georgia company. An Ontario fertility centre implanted one of the two viable embryos that were created in the respondent, and she gave birth to the parties' son. The parties separated and an acrimonious divorce ensued. The respondent wished to have the second embryo implanted in her. The applicant did not consent and preferred to have it donated. The respondent brought a motion for an order naming her the owner of the second embryo so that the fertility clinic could implant it in her.

Held, the motion should be granted.

The dispute should be governed by contracts into which the parties entered freely. The contract with the Ontario fertility centre provided that in the event of separation, the patient's (i.e., the respondent's) wishes were to be respected. The contract with the Georgia company provided that in the event of divorce, "the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court". The contracts were valid. Accordingly, the embryo was to be released to the respondent. The applicant, who helped pay for the embryo, was entitled to reimbursement for his financial interest in the embryo. [page62]

Cases Referred To

• M. (J.C.) v. A. (A.N.), [2012] B.C.J. No. 802, 2012 BCSC 584, 33 B.C.L.R. (5th) 140, 16 R.F.L. (7th) 269, [2012] 9 W.W.R. 492, 349 D.L.R. (4th) 471, 214 A.C.W.S. (3d) 499, consd
• C. (C.) v. W. (A.), [2005] A.J. No. 428, 2005 ABQB 290, 50 Alta. L.R. (4th) 61
• Evans v. Amicus Healthcare Ltd., [2007] ECHR 265, affg [2004] EWCA Civ. 727, affg [2003] EWHC 2161
• R. v. Morgentaler, [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, J.E. 88-220, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 3 W.C.B. (2d) 332

Statutes Referred To

• Assisted Human Reproduction Act, S.C. 2004, c. 2
• Family Law Act, R.S.O. 1990, c. F.3, ss. 14 [as am.], (a), 30 [as am.], 31(1) [as am.]

Authorities Referred To

• Forman, Deborah L., "Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer" (2011), 24 J. Am. Acad. Matrim. Law 57

Counsel

MOTION for an order with respect to a jointly owned embryo. James M. Longstreet, for applicant. Dale Brawn, for respondent.

DEL FRATE J. : —

Overview

1The respondent, D.H., has brought this motion to name her the owner of an embryo created from gametes purchased by the parties during their marriage. She is seeking an order that will allow the ISIS Regional Fertility Centre to implant the embryo in her.

2The applicant, S.H., does not consent to this use of the embryo and would instead prefer that it be donated.

Facts

3The parties were married on February 2, 2009.

4On February 1, 2012, the parties entered a contract with MyEggBank in Georgia to purchase donated eggs and sperm for US$11,500. Four embryos were created, two of which were unviable and destroyed. Neither party has a biological connection to the embryos.

5The two remaining embryos were shipped to the ISIS Regional Fertility Centre in Mississauga, and one was implanted in the respondent shortly thereafter. On December 9, 2012, she gave birth to the parties' son.

6The parties separated on December 18, 2012, and an acrimonious divorce ensued. [page63]

7The present motion was brought by the respondent, who seeks to use the second embryo that remains in storage.

8Several agreements were signed on December 14, 2011, one was signed with the ISIS Regional Fertility Centre (the "Ontario contract") and two with the Biology Associates (the "Georgia contracts"). The parties dispute what the contracts require be done with the embryos in the event of a divorce.

Parties' Positions

Respondent

9The respondent argues that the Ontario contract should be followed. This indicates that the clinic will respect "the patient's wishes" in the event of divorce. This contract defines the respondent as "the patient".

10Moreover, there is no need to balance competing rights of the parties as the applicant has no biological connection to the embryo. She also stated that she would not seek child support from the applicant.

11The court should consider the use to which an embryo would be put, and equity favours the respondent who wishes to use the embryo for implantation. Using this embryo is of particular importance because it would be the only real biological family connection that the parties' son would have.

12A further submission is that the best interests of existing children should not be taken into consideration when deciding the usage of reproductive materials: M. (J.C.) v. A. (A.N.), 2012 BCSC 584. Regardless, the respondent has graduated from a personal support worker program and has the ability to support any resulting child.

13Given that she is 48 years old, time is of the essence. She claims that the embryo is viable, and a doctor's letter was provided stating that she is physically capable of carrying a pregnancy to term.

Applicant

14The parties signed a contract with the ISIS Regional Fertility Clinic that outlined that the embryos would be treated as property. They also agreed to this in one of the Georgia contracts (agreement for cryopreservation of embryos), which states:

We intend to have these embryos thawed and transferred back to the female partner's uterus. However, if we should change our decision in this regard for any reason, we understand that we have three options. [page64]

The parties chose donation, and the options the parties were given will be outlined later. However, one of the terms deal with disposition of the embryos in the event of divorce or separation.

15Additionally, the applicant claims that he paid the entire purchase price of the embryos, thereby making the embryo his property. Any interest claimed by the wife is held in trust for the applicant, per the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), s. 14.

16The applicant further argues that a sibling is not in his son's best interests. He states that the respondent refuses to be gainfully employed and had a personal income of only $12,000 in 2016. As a result, the majority of their son's support will be imposed on the applicant. The applicant argues that the respondent is in breach of her duties to be self-sufficient and to provide for her child, per the FLA, ss. 30, 31(1).

Analysis

17There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

18However, the case of M. (J.C.) v. A. (A.N.), 2012 BCSC 584, supra, is nonetheless instructive as it involved a dispute over gametes that the parties did not have a biological connection to. In that case, a couple purchased 13 sperm straws, and the court held that the sperm straws were property. They were subsequently divided between the parties, with one party receiving seven straws and the other receiving six straws and $125 for her interest in one-half straw. See, also, C. (C.) v. W. (A.), [2005] A.J. No. 428, 2005 ABQB 290, 50 Alta. L.R. (4th) 61.

19In the present case, the parties agreed that the embryos would be treated as property in their contracts with both the ISIS Regional Fertility Clinic and the Biology Associates. Neither party contests that the embryos should be treated as property. Accordingly, they must be divided as such. However, there is only one embryo.

20The Family Law Act contains a comprehensive scheme for equalizing and determining ownership of marital assets. Both parties are listed on the contracts, and there was a clear intention that they would jointly own the embryos, regardless of their unequal financial contributions. Section 14(a) specifically states that "the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants".

21As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be [page65] determined based on the agreements and the parties' intentions. It is illegal to purchase and sell gametes and embryos, according to the Assisted Human Reproduction Act, S.C. 2004, c. 2:

Purchase of gametes 7(1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.

Purchase or sale of embryos (2) No person shall (a) purchase, offer to purchase or advertise for the purchase of an in vitro embryo; or (b) sell, offer for sale or advertise for sale an in vitro embryo.

22With this legislation, one must determine the legality of the contracts and whether they take precedence over the legislation. However, this was not argued before me and I do not plan on dealing with the conflict of laws issue arising on the facts.

23The relevant portions of the agreements are as follows:

Ontario Contract

ISIS Regional Fertility Centre -- Consent to Thawing and Transfer of Cryopreserved Embryos Created from Frozen Oocytes

We understand that any cryopreserved oocytes or embryos are and will be classified as property and liability regarding possible damage or loss to any cryopreserved oocytes or embryos will be defined as property loss or damage.

1. We hereby consent to the thawing and use of cryopreserved oocytes or embryo(s) for our own reproductive use.
2. If the cryopreserved oocytes or embryos created for our own reproductive use are no longer needed for such use, then either (a) or (b) below applies (one of (a) or (b) must be checked) (both to initial if applicable) (a) __ __ the agent shall destroy the cryopreserved oocytes or embryos; OR (b) __ __ we hereby provide out consent to the use of such cryopreserved oocytes or embryos as follows: __ __ for reproductive use of a third party __ __ to improve assisted reproductive procedures; or __ __ for instruction purposes in assisted reproduction procedures;

[Note: the parties selected option (b)]

In the event of divorce or legal separation between the patient and her partner, the Agent shall: [page66]

__ __ respect the patient's wishes __ __ respect the partner's wishes __ __ direct the disposition of the oocytes or embryos as in the case of the simultaneous deaths of the patient and her partner, unless the patient and the partner jointly provide different written instructions to the Agent.

[Note: the parties selected the first option.]

Prior to providing this consent, we received and reviewed written information from ISIS 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 out consent to the use of out in vitro oocytes or embryo(s) at any time provided that we did so in the manner explained.

Georgia Contracts

Reproductive Biology Associates -- Agreement for Cryopreservation of Embryos

Disposition of Embryo(s):

We intend to have these embryos thawed and transferred back to the female partner's uterus. However, if we should change our decision in this regard for any reason, we understand that we have three options.

(1) Embryo Donation; Embryos will be donated to another couple. (2) Cell Culture and Degeneration/Disposal: Embryos will be thawed and discarded. (3) Scientific Study: The embryos will be observed and studied scientifically in the laboratory at RBA by microscope or other means. The embryos will not be maintained for more than one week of further development.

. . . While we are alive our frozen embryo(s) will not be released for the purpose of donation to another couple, disposal, or scientific study without the written consent of us both.

The possibility of one or both of our deaths, disappearance, incapacity, inability to agree on disposition in the future, or any other unforeseen circumstance that may result in neither of us being able to determine the fate of any stored embryo(s) requires that we now indicate out wishes. We understand that one of three decisions explained above must be made. In the event we are unable to make a decision later, we now indicate our desire to have any or all of our embryos in frozen storage disposed as follows:

A. Embryo Donation B. Cell Culture and Degeneration/Disposal C. Scientific Study

[Note: the parties selected A.]

In the event of divorce, separation, or marriage dissolution we understand the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court or competent jurisdiction. [page67]

Reproductive Biology Associates -- Recipient Consent for Oocyte Donation Using Cryopreserved Eggs From an Anonymous Donor

Acknowledgement of Responsibility and Rights of Child(ren) Produced: From the moment of conception, I (We) fully accept the conception and pregnancy as within the marriage and agree that all child(ren) so produced are legitimate child(ren) of this marriage and are our heirs, considered in all respects including descent of property; that we completely waive forever any attempt to disclaim such child(ren). We agree to have a lawyer draw up documents to this effect.

Withdrawal: I (We) may withdraw at any time after signing this consent form, should we choose to discontinue participation. You have advised us that out withdrawal will not prejudice or affect our present to future care. I (We) understand that we may not achieve pregnancy if we withdraw.

24The parties were informed of the ramifications of signing these contracts, and by signing they indicated that they knew what they were doing.

25Neither party argued undue influence, mistake, misrepresentation or any other basis on which to find the agreements were not legally binding. Therefore, this matter must be decided solely on the contracts the parties signed. Although counsel argued that the best interests of the parties' son is relevant, I do not find this to be a relevant consideration in this case. Such an analysis would be highly speculative and potentially discriminatory: see M. (J.C.) v. A. (A.N.), at paras. 83-85.

26Similarly, the chances of a live birth resulting from the implantation and the respondent's financial means are irrelevant to the matter at hand. Individuals have the right to make decisions of fundamental importance affecting their private lives, such as having (or not having) children, without unwarranted interference: see R. v. Morgentaler, [1988] 1 S.C.R. 30.

27I now turn to the interpretation of the contracts. It is abundantly clear that the contracts make specific reference to how the embryos are to be dealt with in different circumstances.

28In the Ontario contract, the parties agreed that in the event of separation, the agent "shall" respect the patient's wishes. The patient, being the wife, has elected to keep the embryo to attempt another implantation.

29The Georgia contract also refers to how the embryos are to be disposed of. Both parties chose "donation" if they were unable to agree, and the contract goes on to state that,

In the event of divorce, separation, or marriage dissolution we understand the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court or competent jurisdiction. [page68]

30The contract places the responsibility of deciding on the court and takes away the wishes of the parties.

31In my view, the parties knew what they were agreeing to at the time of signing the agreements. It would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to. One cannot apply buyer's remorse. I find that the contracts are valid and pursuant to that contract, "the Agent shall: Respect the patient's wishes". Accordingly, the embryo is to be released to the respondent.

32In M. (J.C.) v. A. (A.N.), the 13 sperm straws were unevenly divided and one party was ordered to pay $125 for receiving an additional straw. Although this was not requested, but because there is a request for the division of the property, it is only fair that the applicant be reimbursed his share of the value of the disputed embryo.

33This order is being made in spite of the ADHR, which prevents the sale of gametes and embryos. It is clear that the applicant helped pay for the embryo. It is also clear that the embryo is property. If the property is to be divided in that fashion, then surely, he is to be reimbursed for the cost of purchasing those gametes.

34The parties paid USD$11,500 to create four jointly owned embryos. Each embryo is therefore worth USD$2,875. The applicant's interest in half of the remaining embryo therefore entitles him to an award in the amount of USD$1,438.

35In arriving at this disposition of the embryo, I take into consideration the learned article by Deborah L. Forman, "Embryo Disposition and Divorce: Why Clinic Consent Forms Are Not the Answer" (2011), 24 J. Am. Acad. Matrim. Law 57.

36In it, Professor Forman submits that these contracts and consents may not be helpful in resolving these types of disputes and probably cause more uncertainty, at p. 59:

While these documents might appear to settle the matter, in fact, the content of the forms and the process and circumstances surrounding their execution raise serious doubts about their value in resolving disputes over embryos in the context of divorce. Case law to date evinces the uncertainty plaguing the validity of these forms and how to resolve disputes over embryo disposition at divorce more generally. Courts in most states have yet to consider the issue. In those that have, the judicial decisions range from those that purport to view such agreements as binding and enforceable to those that explicitly refuse to enforce certain dispositions chosen at the time of treatment, in the absence of contemporaneous consent. Moreover statutory proscriptions related to embryo disposition, which vary widely in some respects, nonetheless share the dubious distinction of bringing confusion rather than clarity to the question of embryo disposition in cases of divorce. [page69]

37She also addresses the fact that these types of cases are in their infancy.

38Although this article is of assistance in pointing out numerous frailties in arriving at a decision, it does not assist me in this case. If changes are to be made to the law, Parliament ought to be the one to do so. This court can only interpret the existing law. Therefore, unless legislative changes are made, this court must decide disputes such as this one based upon the agreements signed and the parties' intentions.

39Counsel also pointed to Evans v. Amicus Healthcare Ltd., [2003] EWHC 2161, affd [2004] EWCA Civ. 727, affd [2007] ECHR 265, which recognized the right of a sperm donor to withdraw his consent to the use of the embryos he and his wife created. However, that case is readily distinguishable, as the donor had a biological connection to the disputed embryos and the legislative context differs considerably from that in the present case.

40Should it be necessary to address the issue of costs, the parties may contact the trial coordinator to set a date.

41Order to issue as per reasons.