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Stefanie Carsley is a doctoral candidate at McGill University’s Faculty of Law. Her research focuses on Canadian legal responses to assisted reproduction.

An Ontario judge ruled recently that a woman could use a frozen embryo to conceive despite her ex-husband’s objections. The court reached the right conclusion: A spouse who wishes to use an embryo to reproduce should be afforded this opportunity. The judge’s reasoning, however, sets a troubling precedent and highlights problems with Canada’s assisted reproduction laws.

Under federal law, spouses who create in vitro embryos from their own sperm and eggs have joint control over these embryos. Should one spouse change their mind – and no longer wish to use these embryos to reproduce – the other will be unable to use them.

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Canadian legislation does not state whether spouses may contract around this rule. Yet, fertility clinics require couples to sign contracts before embryos are created or frozen to stipulate what will happen to their embryos should they later disagree, die, divorce or become unable to bear children. Canadian law is also unclear on whether spouses who create embryos using donated sperm and eggs have joint control over their use.

In the Ontario case, neither spouse had a genetic connection to the embryo; they had purchased sperm and eggs in the United States. The judge found that the ex-wife should have sole ownership of the embryo and ordered her to reimburse her ex-husband for half the cost of creating it (US$1,438). The court relied upon contracts the couple had signed with their fertility clinics indicating that the embryo should be treated as property and that the clinic should respect the ex-wife’s wishes upon divorce.

Laws that provide spouses with joint control over their embryos rely on the problematic idea that men and women should have an equal say in what happens to their genetic material. These laws ignore the health risks and side effects that women endure in harvesting their limited number of eggs. Men can also produce viable sperm at a much older age than women can produce ova. A frozen embryo may represent a woman’s best (or only) chance of conceiving a child.

Should courts enforce clinics’ contracts? Studies indicate that individuals frequently change their minds about what should happen to their surplus embryos, especially after they have children through in-vitro fertilization (IVF). Moreover, patients might be inadequately informed about the legal consequences of these agreements. Indeed, prior to the Ontario case, courts had yet to pronounce on the validity of these contracts.

What about treating embryos as property? The Assisted Human Reproduction Act, which criminalizes paying for sperm and eggs in Canada, makes clear that reproductive material is not property that may be exchanged on the market. Adopting a property approach also means that embryos could be used as a bargaining chip in acrimonious divorces. A spouse that wishes to use an embryo to conceive may regard it as invaluable and their partner might exploit their desire to have more children to gain more property in a divorce.

Federal regulations that require spouses to jointly consent to the use of their embryos should be amended. Lawmakers should instead clarify that a spouse who wishes to use an embryo to conceive be permitted to do so and that an objecting spouse should have neither parental rights nor obligations like child support. Legislation should also stipulate that embryo disposition contracts should not be treated as legally binding. These reforms would better balance and protect spouses’ respective interests, while accounting for the experiences of Canadians who use IVF to build their families.

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