Blog by Henry Howe of case review by Kimberly Whaley for STEP Toronto, September 2019
Assisted reproduction has raised complex legal and ethical challenges that could have implications for estate planning and litigation. SH v DH, was the first case to address a dispute over the use of an in vitro embryo, between former spouses, when neither spouse had contributed reproductive material. The Court of Appeal for Ontario allowed the ex-husband to withdraw his prior consent, and prevent his ex-wife from using the embryo.
The parties had been divorced for several years. While they had been married, they had used in vitro fertilization. Neither party had contributed genetic material to the process, which had created two viable embryos. The couple had used one embryo to conceive a child, and had stored the other for potential later use.
The couple had signed a contract concerning the use of the second embryo. The contract stipulated that the couple could use the second embryo to reproduce, but could also withdraw their consent at any time. It further stated that if the couple were to separate or divorce, then the lab would respect the wishes of the wife (“DH”) regarding the embryo.
Several years after the divorced, DH intended to use the second embryo. Her former husband (“SH”) wished to withdraw his consent to its use, and submitted a written withdrawal of consent, in the proper form, to the lab. The lab refused to act without a court order, so DH brought a motion in the Ontario Superior Court of Justice.
The motion judge applied the principals of property and contract law, upheld the provision in the contract that the lab would respect DH’s wishes after a divorce, and ordered that the lab release the embryo. SH appealed this decision.
The Court of Appeal rejected the application of contract law principles to the issue at hand, and found instead that Parliament had chosen a consent-based model to govern assisted reproduction. The court’s decision turned on a careful reading of the Assisted Human Reproduction Act (“the AHRA”) and the Assisted Human Reproduction (Section 8 Consent) Regulations (the “Consent Regulations”). The court noted that neither party had brought the Consent Regulations to the motion judge’s attention.
The AHRA states in s. 2(d) that “free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies”. S. 8(3) prohibits the use of an in vitro embryo for any purpose without the consent of the “donor”. S. 61 establishes that any prohibited use is a criminal offence.
The definition of a “donor” in the Consent Regulations includes a married or common-law couple, even if neither spouse has contributed genetic material to the embryo. A donor must consent in writing to the embryo’s use, and either spouse in a donor couple may withdraw consent. If one member of a donor couple contributes genetic material, and the couple subsequently separates or divorces, then only the individual who contributed genetic material is the donor. S. 1(2) notes that a “spouse” cannot be “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”.
Analysis and Decision
The Court overturned the motion judge’s decision, and ruled that DH could not use the second embryo. It found that the AHRA and the Consent Regulations granted SH the right to withdraw his consent, and that the contract did not deprive him of that right.
The court’s interpretation of the AHRA and the Consent Regulations hinged on four points:
“(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) [of the Consent Regulations].”
Because the AHRA addresses significant ethical concerns, and because of the central importance of consent throughout the statute, the court found the notion of irrevocable consent by a donor to be contrary to the statute’s purpose.
Because the Consent Regulations specifically allow for donor status to change if only one spouse contributed genetic material, the court reasoned that spouses in “the same genetic position” – including a situation in which neither spouse contributed material – could not cease to be a donor couple.
Because the Consent Regulations only allow an embryo to be used if the donor is informed of the means by which to withdraw consent, the court found that the consent itself was inextricably linked to the right to withdraw it, and that this right could not be extinguished by a mere change in marital status. An alternative finding would “shake the very foundation of the original consent, undermining its voluntary and informed nature”.
The court found s. 1(2) of the Consent Regulations, which excludes certain people from that meaning of “spouse,” to refer only to people who are still married. It interpreted the words “at the relevant time” to refer to the time of the embryo’s creation, and found that the subsection’s purpose is to prevent couples who are still technically married, after their marriages have broken down, from inadvertently becoming donor couples. It rejected DH’s argument that s. 1(2) had any effect on SH’s ability to withdraw consent because he was no longer DH’s spouse.
On the issue of whether the contract allowed DH to make a unilateral decision, the court again referred to the central importance of consent in the AHRA, and the ethical reasons for this importance. It noted that the use of an embryo without consent is a criminal offence, and that a person cannot contract out of criminal law protections. It also emphasized the language in the contract that allowed for the couple to withdraw consent at any time, finding that in addition to not being able to extinguish SH’s right to withdraw, the contract did not even purport to do so.
In summary, the court found nothing in the legislation that had caused SH to cease to be part of the donor couple, and no means by which he had, or could have, extinguished the rights that his donor status had given him.
The possibility of a person storing reproductive material, and using it at a later date, is an area in which the law is still developing to keep up with technological realities. In the specific context of estate planning, clients and their lawyers should sometimes consider the property-related implications of stored material, how to plan for its potential use, and how to prepare around the possibility of children being conceived after a parent’s death.
 2019 ONCA 454
 2018 ONSC 4506
 SC 2004, c 2