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PARENTS AND CHILDREN - Medically-assisted procreation - Consent

Thursday, July 04, 2019 @ 9:04 AM  


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Appeal by the husband from an order granting the wife’s application for an order permitting her to use a frozen embryo obtained during the parties’ marriage. The parties were now divorced. Neither party was a biological parent of the embryo. The wife now wished to have the embryo implanted into her. Although the husband consented to her use of the embryo when it was created, he changed his mind and now wished to withdraw his consent. The motion judge applied principles of contract and property law to conclude that the embryo should be released to the wife for her use. The motion judge held that the embryo was property covered by the contracts. As the parties specifically contracted in Ontario to respect the wife’s wishes upon divorce, the motion judge concluded that it would be contrary to contract law to overtake those wishes now.

HELD: Appeal allowed. The parties remained the embryo’s donor under s. 10(1)(b) of the Consent Regulations despite their separation and divorce. Even though they were no longer married, s. 14(3) of the Regulations allowed the husband to withdraw his consent to the wife’s use of the embryo. He was not bound to his prior written consent, distilled in the form of an otherwise lawful contract, because the statutory and regulatory provisions fundamentally preserved a donor’s inherent right to change her or his mind about in vitro embryo use. The husband’s unmitigated right to withdraw his consent overtook any prior contractual agreement to the contrary. Despite having contracted in Ontario to permit the wife to unilaterally deal with the embryo according to her wishes in the event of divorce, the husband did not, nor could he have, contracted out of the protections afforded to him under s. 8(3) of the Assisted Human Reproduction Act and the Consent Regulations.

S.H. v. D.H., [2019] O.J. No. 2872, Ontario Court of Appeal, S.E. Pepall, C.W. Hourigan and J.M. Fairburn JJ.A., May 31, 2019. Digest No. TLD-July12019009