What is the price of a human embryo? It depends. In some circumstances an embryo, once birthed, can trigger liability for child support. In other circumstances, as shown by a recent ground-breaking case from Ontario, it can be reduced to the status of “property” and dealt with accordingly — as long as you’re reimbursed for what you contributed, it’s none of your business if your ex wants to implant it and have a baby.
It is important to note that in this Ontario case, a July 2018 decision called S.H. v. D.H., which was reported in the National Post, neither party had a genetic connection to the embryo. This fact sets it apart from the myriad of cases in the U.S. where there is a genetic connection, and therefore gut-wrenching arguments about competing rights come into play, such as: dad doesn’t want his biological child to be born into an already-broken home, but on the other hand mom had cancer and is now infertile, so this is her only chance to have a biological child…
In S.H. v. D. H. the couple already had one child made from a donor egg and donor sperm, and there was one frozen embryo (from the same donors’ egg and sperm) in storage. Mom wanted to go ahead and have it implanted in her and carry it to term, but dad objected because they had split up acrimoniously about a week after the first child was born, and he thought she wasn’t fit to have more kids because she “refused to be gainfully employed.”
Dad’s complaint was rejected because, 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 a contract, said that in the event of separation the wishes of the “patient” shall be respected. The court ruled that “the patient, being the wife, has elected to keep the embryo to attempt another implantation.”
True, she would have to reimburse dad for what he 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, the judge noted, mom said she would not seek child support for the additional child. How the judge knew this would remain true going forward is not clear. Moreover, it is well-settled law that parents cannot waive child support because it is the child’s right, not theirs. And this is not to mention that the “child” here was not yet conceived, let alone born.
The judge did not specifically discuss the application of Ontario’s All Families Are Equal Act which came into force January 1, 2017 and amended various statutes such as the Children’s Law Reform Act. The amendments are far-reaching, and one of the things they do is codify a judge-made principle from ten years earlier: a genetic connection to a child is not the only way to establish parenthood — the intention to be a parent works too. This intention, says the new legislation, must exist at the time of conception, and in the case of an embryo this means when it is implanted into the womb. (Merely creating an embryo does not constitute conception.) So in this case, dad obviously had parental intent when the first child was conceived, but his intention with respect to any future children presumably evaporated the day the couple split up. Therefore, because his intent will not exist on the day the second embryo will be implanted, it would seem he should not be considered a “parent” of this child.
It might be awkward explaining this to the kids down the road: dad is a parent of the first one, and pays child support accordingly, but not so for the second. Moreover, it would be interesting to see what a court might do in the event mom seeks support for the second child, despite her statement to the contrary (!!), and more interestingly, despite the wording of the amended Children’s Law Reform Act.
Another important point to note in this case is the “conflict of laws” issue, which the court specifically declined to address. The couple bought donor ova and donor sperm from a place called MyEggBank, located in Georgia. Four embryos were created using the donor sperm and ova, and shipped to a clinic in Ontario. Buying ova and sperm is a criminal offence in Canada which could land you in jail for ten years. But where did this purchase-and-sale occur? It seems reasonable to suppose that the answer is Georgia, because that’s where the items originated, and that’s where the money went to. As long as the purchase of ova and sperm is legal in a jurisdiction outside of Canada (specifically, in this case, it would be the State of Georgia), why should/would this be a crime in Canada? Big issue. Big stakes. And it is a big deal.
For advice on family and fertility law issues, contact Shirley Levitan.