A woman wanted to thaw out a frozen embryo and create a second child, against the wishes of her ex-husband. The lower court allowed it, but the Ontario Court of Appeal had a very different view: not only would this run afoul of federal regulations, it would be a criminal act.

The couple created embryos using donor eggs and donor sperm, had one child, then split up. Some five years later, mom wanted to thaw another embryo and make another child, so that the existing one would have a genetic sibling. Dad wasn’t too happy about this and went to court to stop her. They had split up acrimoniously a week after the first child was born, and he thought she wasn’t fit to have more children because, amongst other things, she “refused to be gainfully employed.”

He lost. The lower court ruled that, in these circumstances, the frozen embryo could be thought of as property, and the question of who owned and controlled it could be answered pursuant to the law of contract. The consent form signed with the fertility clinic, which the judge deemed to be a contract, said that in the event of separation, the wishes of the “patient” would be respected. The “patient” was the mom, the court said, and she was therefore allowed to “keep the embryo to attempt another implantation.”

True, she would have to reimburse dad for what he had contributed to the creation of the embryo – $1,438.00 U.S. dollars, to be exact. Then she could go ahead and expand the family. Tough luck for dad if he didn’t feel good about this. By way of consolation, mom said she would not seek child support for the additional child. How this promise could be relied upon is not clear. After all, it is well-settled law that parents cannot waive child support, because it is the child’s right, not theirs. Not to mention that the “child” here was not yet conceived, let alone born.

Dad appealed and won. The Ontario Court of Appeal ruled that this was not a property issue or a contract issue. In fact, it was the exact opposite of contract law: dealing with embryos is governed by federal regulations which, unlike most contracts, preserve the parties’ right to change their minds after the embryo is created. Dad changed his.

Moreover – and this is where Canadian law gets remarkably severe – to go against dad’s revised wishes and make a second baby might well constitute a crime. The appeal court explained that under s. 8(3) of Canada’s Assisted Human Reproduction Act  (AHRA), together with s. 14(3) of the accompanying Consent Regulations, “if the respondent were to go ahead and use the embryo in the face of the appellant’s lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.”

This reflects “deep moral concerns about human reproduction and its intersection with human autonomy,” the appeal court explained, adding that the goal of the AHRA is to avoid abuse of reproductive technology that “might damage individuals – both existing and yet to be conceived – and ultimately society.” For instance, the statute prohibits things like human cloning, creating a chimera by transplanting reproductive material from non-human life forms into human beings and vice versa, and paying a fee to a surrogate or ova/sperm donor.

These “deep moral concerns” are not shared in many places outside Canada. For example, paying a fee to a surrogate is routinely done in several U.S. jurisdictions, such as California, but if you do it up here you could go to jail for up to ten years, and/or face a fine of up to half a million dollars. As for creating a human/animal chimera, this is already being done in China – a legal and regulatory free-for-all – where labs are now working to create Pigman and Monkeyman. Whether these creatures will be a boon to humanity remains to be seen, but they will no doubt be excellent fodder for a Marvel Comics movie.

In any event, the intersection of criminal and fertility law raises an intriguing question in Canada: what if, unlike the case discussed above, the frozen embryos are indeed genetically connected to a woman, and they are her last chance to have a genetic child? This conundrum has been litigated in the U.S., in circumstances where the woman becomes infertile after creation of the embryos, and courts have ruled that she can go ahead and use the embryo(s) to make a baby. The theory is that her interest in having a genetic child outweighs her ex-husband’s distaste for having a kid with someone he has already broken up with. In other words, in cases like these, the only thing worse than forcing a man to become a father is not forcing him to become a father. Would Canadian courts do the same?

There hasn’t been a last-chance case in Canada, but if there ever is, the judge will face a stumbling block: to use the embryo, and allow a baby to be made without the consent of the ex-husband (assuming he is the sperm provider/genetic father,) is to allow a criminal act. Perhaps the Canadian solution would be to let her make the baby, then give her ten years of free housing in federal penitentiary. At least she’d get three square meals a day and they probably have daycare.

The U.S. approach is illustrated by the following two last-chance cases: in the 2012 Pennsylvania decision Reber v. Reiss, the parties created embryos prior to the wife’s cancer treatment, which rendered her infertile. They subsequently split up, and the court ruled that while “ordinarily the party wishing to avoid procreation should prevail, in our balancing of the facts unique to this case, we find that wife’s inability to achieve biological parenthood without the use of the embryos is an interest which outweighs the husband’s desire to avoid procreation.”

The husband had suggested that she adopt a child instead, but the court rejected this, stating that “there is no question that the ability to have a biological child and/or be pregnant is a distinct experience from adoption. Thus, simply because adoption or foster parenting may be available to the wife, it does not mean that such options should be given equal weight in a balancing test. Adoption is a laudable, wonderful, and fulfilling experience for those wishing to experience parenthood, but there is no question that it occupies a different place for a woman than the opportunity to be pregnant and/or have a biological child.”

In 2019 the Arizona Court of Appeal followed suit. In a 2-1 split, they allowed the woman to go ahead and make a baby. In the ruling, Terrell v. Torres, the majority of the court explained that the sole purpose of creating the embryos was for this woman to preserve her ability to have biological offspring, which was about to be destroyed by cancer treatment. She had already located a “ready and willing” donor, but when Mr. Terrell caught wind of the plan, he piped up and offered his sperm instead. Then, after the embryos were created, he backed out. “Without Terrell’s intervention,” chastised the majority of the court, “she would likely have viable cryogenically preserved embryos ready for implantation, as she planned.” They added that “if the factual underpinnings here do not support her claim to the embryos, then there is likely no factual scenario which would result in the award of the embryos to one party over the objection of the other.”

Whether this approach will find favour in Canada remains to be seen. It will certainly be interesting to see what our courts do if the “last chance for a genetic child” dilemma rears its vexing head.


For advice on family law issues and fertility law issues, contact Shirley Levitan.