If a couple creates an embryo, and separates before the embryo is implanted in the woman, who owns the embryo? The woman? Or her husband? Or both?
An Ontario couple purchased eggs and sperm from a U.S. source (it is illegal to buy or sell eggs, sperm or embryos in Canada). Two viable embryos were created through in vitro fertilization at an Ontario fertility clinic.
One of the embryos was implanted, and the couple had a son. But eight days after the son was born, the couple broke up. The wife and husband each claimed ownership of the embryo.
The court looked at the agreement the couple signed at the fertility clinic, which specified that "the patient's wishes" would be respected in the case of a divorce. The "patient" was the wife.
The husband argued that he should be the owner, because he had paid for the procedure, and because the consent form they signed in the U.S. should 'trump' the one they signed at the fertility clinic.
The court held for the wife, who is planning to use the embryo to create another baby.
The case is precedent-setting because the court considered that the embryo, which was genetically unrelated to either party, is property.
The moral of the story is to consider these questions before embarking on a fertilization project.
The case is called SD v DH 2018 ONSC 4506