Adam Black quoted in Canadian Lawyer on a recent case that says consent can be withdrawn for use of frozen embryo

A divorced woman will not have the right to keep an embryo that she and her then husband contracted to have frozen and preserved, because her former spouse has not given his consent to the embryo being used, the Court of Appeal for Ontario ruled recently.

In S.H. v. D.H., 2019 ONCA 454, the appellate court found that it was the issue of consent under the Assisted Human Reproduction Act and not property or contract law that determined the matter, even though the couple’s contract had stipulated that the wife’s wishes would prevail.
Justice Michal Fairburn, who wrote the decision for the panel, “is saying you can’t contract out the requirement for donor consent,” says Adam Black, a family lawyer at Torkin Manes LLP in Toronto. “You can’t make an agreement between the two of you that would be inconsistent with the legislation,” i.e., the Assisted Human Reproduction Act, federal legislation that came into effect in 2004. “The regulations define these two individuals as donors, notwithstanding the source of the reproductive material,” Black adds, noting that this was the first such case in Canada to be decided in which neither party — a now- divorced couple — had a genetic connection to the embryo, which was created in a U.S. laboratory in 2012 using in vitro fertilization and was stored at a fertility centre in Mississauga, Ont.

This article originally appeared in Canadian Lawyer and Law Times. To view the complete article, visit Canadian Lawyer magazine.