Court rules Ontario woman can’t implant frozen embryo without ex-husband’s consent

The Ontario Court of Appeal has found that a divorced woman cannot implant a frozen embryo without her ex-husband’s permission.

The woman and her ex-husband — who were identified as S.H. and D.H. in a recently released decision — contracted an American lab in 2011 to create in vitro embryos from anonymous donors. One embryo was implanted in the woman, and the other was frozen.

The couple subsequently had a baby and later divorced. The woman now wishes to implant the second embryo in her so that her child will have a brother or sister. She said she would not seek child support from her ex-husband.

The ex-husband had consented to the use of the embryo when it was created, but changed his mind since the two divorced. He contacted a Canadian lab, which was in possession of the frozen embryo, to inform them he was withdrawing his consent. The lab then said it would require a court order to implant the embryo in the woman.

When the woman pursued a court order, a judge ruled in her favour in what was the first decision in Ontario to consider the use of a donated in vitro embryo after a divorce.

The judge based his decision on contracts the couple signed when they first started the in vitro process.

The Court of Appeal reversed that decision, finding a parent cannot “contract out” of their ability to withdraw consent.

“The appellant’s unmitigated right to withdraw his consent overtakes any prior contractual agreement to the contrary, and is dispositive in this case,” Justice Michal Fairburn wrote on behalf of a three-judge panel in a unanimous decision. “I do not accept that donors may simply contract away their rights to withdraw consent under the criminal law.”

While neither is genetically related to the frozen embryo, the Court of Appeal found that both parents have the right to withdraw their consent.