Consent can’t be ‘frozen in time’ even if embryos can be, appeals court finds

Today’s modern family is a fascinating, complex and changing construct. As the way we form and grow a family evolves, the law must recognize and respond to the changes. That is precisely what happened in a recent case before the Court of Appeal for Ontario, in which the court had to resolve a dispute between a divorced couple over the use of an embryo that was created while the couple was still married.

During their relationship, the couple turned to assisted reproductive technology to have a child. In particular, the couple decided to use in vitro fertilization in which the reproductive material from two anonymous individuals, selected by the couple, was combined to create embryos. Through that process, two viable embryos were created and frozen in a process called cryopreservation. During the parties’ relationship, one embryo was implanted into the wife and a child was born. Shortly thereafter, the parties separated.

Sometime after separation, the wife expressed her desire to use the remaining embryo to have a second child. The husband opposed her doing so and wanted the embryo to be donated to a third party. Essentially, the husband withdrew his consent to the use of the embryo. The novel issue of who gets to decide if the embryo can be used was front and centre before the court.

At trial, Justice Del Frate of the Superior Court of Justice looked at the issue through the lens of contract and property law. In doing so, he concluded that the embryo was property covered by the contracts the parties signed at the time the embryos were created. According to those contracts, in the event of divorce or legal separation, the cryopreservation service provider would respect the wife’s wishes. Against that backdrop, Justice Del Frate concluded that the embryo was to be released to the wife. The husband appealed.

In its decision released on May 31, the appellate court agreed with the husband. Writing for the Court of Appeal, Justice Fairburn found that the proper approach was to interpret and apply the existing relevant legislation rather than the application of property and contract laws. Notably, at trial, neither party framed their positions based on the existing legislation and, for that reason, it is not surprising that Justice Del Frate reached the decision to release the embryo to the wife.

Justice Fairburn began her analysis with a nod to the changing family landscape. There are few things as fundamental to the human experience as the decision whether or not to have children,” she noted. “New reproductive technologies have expanded the availability of that choice.”

Turning her focus to the legislative regime in respect of reproductive technology, Justice Fairburn quickly pointed out that the Assisted Human Reproduction Act, a 2004 federal statute, “prohibits the use of reproductive material and in vitro embryos without consent.” Specifically, section 8(3) of the AHRA provides that “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.” The AHRA goes on to provide that a breach of section 8(3) will constitute “a criminal offence, a conviction for which is accompanied by a potentially substantial sentence.” To avoid criminality, “a person who uses an in vitro embryo must have the prior written consent of the embryo’s donor.”

The underpinnings to the legislative regime are important and underscore why the husband’s consent is mandatory. “Parliament’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,” Justice Fairburn noted.

The importance of, and need for, ongoing consent is paramount, even if the parties previously agreed, as in this case, to defer to one party’s wishes. “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,” Justice Fairburn wrote.

Further, the AHRA clearly places “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.”

Under the AHRA’s consent regulations, the parties are the donors regardless of the source of the human reproductive material used to create the embryo.

In reaching her decision, Justice Fairburn pointed to comments made by Beverly McLachlin, the former chief justice of Canada, in a 2010 reference before the Supreme Court of Canada. In that case, Chief Justice McLachlin noted that “at the heart of section 8 (of the AHRA) 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.”

Importantly, in her final words on the issue of consent, Justice Fairburn concluded that parties cannot contract out of the legislative regime that requires ongoing consent. In other words, notwithstanding an agreement which prefers one party’s wishes over the other’s, either party may withdraw his/her consent in the future. In the context of the criminal repercussions of proceeding without consent, “an individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law.”

This article originally appeared in the National Post.