Assigning monetary value to embryo may conflict with AHRA’s intent

By Kirsten McMahon, Associate Editor

A case involving a divorced couple fighting over the fate of an embryo highlights the tension between provisions in the Assisted Human Reproduction Act (AHRA) and the Family Law Act (FLA), St. Catharines family lawyer Sharon Silbert tells

In the matter, the respondent wife brought a motion to name her as the owner of an embryo created from donated eggs and sperm purchased by the couple during their marriage. She sought an order to allow a fertility clinic to implant the embryo in her, while the applicant husband did not consent to this use and instead preferred that it be donated.

The decision states that in 2012, the parties entered a contract with a U.S. clinic to purchase donated eggs and sperm for US$11,500. Two of the embryos were not viable, and the remaining two were shipped to a fertility clinic in Ontario, where one was implanted in the wife shortly thereafter.

Court records show that on Dec. 9, 2012, the wife gave birth to the parties’ son but they separated eight days later and an acrimonious divorce ensued. Neither party has a biological connection to the embryos.

Silbert, principal of Sharon B. Silbert Professional Corporation, says while news headlines focused on the judge’s decision to treat the embryo as property, she says there is some precedent for human reproductive material being treated that way in the context of separation and divorce.

“There was a 2012 case out of British Columbia where sperm straws — a dose of frozen semen in an insemination unit — were divided between the parties in the context of a separation,” she says. “What’s unique about this case was that it’s a viable embryo and there is only one, so it couldn’t be divided.”

Provisions in the AHRA prevent the sale of embryos and human reproductive material, says Silbert, who was not involved in the matter and comments generally, but if it is treated as property, then you need to determine its value when equalizing marital assets.

“I wonder if assigning a monetary value to an embryo in the context of a divorce is in conflict with the intention behind the legislation that prevents the sale of genetic material,” she says.

“Not only is there a tension between the prohibition on selling embryos and the need to treat them as property in circumstances such as these, there certainly isn’t any law that says how their value should be determined for equalization purposes,” Silbert adds.

The judge noted his order was being made in spite of the ADHR.

“It is clear that the applicant helped pay for the embryo. It is also clear that the embryo is property. If the property is to be divided in that fashion, then surely he is to be reimbursed for the cost of purchasing those gametes,” the judge stated. “The parties paid $11,500 USD to create four jointly owned embryos. Each embryo is therefore worth $2,875 USD. The applicant’s interest in half of the remaining embryo therefore entitles him to an award in the amount of $1,438 USD.”

Silbert says she found it interesting that the judge took the approach of reimbursing one party for what he had invested in obtaining the embryo.

“By focusing on the amount of money the applicant invested in the embryo’s creation, the court was able to minimize the tension between its decision and the ADHR’s prohibition on the sale of human reproductive material,” she says. “However, this approach is inconsistent with the usual method for the valuation of property pursuant to the Family Law Act, which is typically based on fair market value.”

With respect to how the embryos should be dealt with in the event of a divorce, the court turned to the contracts. The judge looked at the Canadian clinic’s contract where the parties selected the option to “respect the patient’s wishes” in the event of a divorce or separation.

The U.S. contract contained a provision that “in the event of divorce, separation, or marriage dissolution the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court or competent jurisdiction.”

“In my view, the parties knew what they were agreeing to at the time of signing the agreements. It would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to,” Justice Robert Del Frate wrote. “One cannot apply buyer’s remorse.”

Silbert says this type of disagreement would likely be resolved differently in a situation where one or both of the parties had a biological connection to the embryo.

“In that case, s. 8 of the AHRA would be relevant because that’s the provision that deals with a donor’s consent to use donated reproductive material,” she says.