Specifically: who gets the embryo?
You might be surprised.
What about if the parties sign a separation agreement, saying that one of them is entitled to keep and use the embryos?
That was the situation in an Ontario case called S.H. v D.H. (2019 ONCA 454).
In that case, involving a man and a woman, the man had agreed in a separation agreement that his partner could keep and use the embryos, which were stored at a Canadian fertility lab. The couple had signed a consent with the lab saying that if there was a 'divorce or legal separation between the patient and her partner, the clinic would 'respect the patient [woman's] wishes'.
But seven years after the separation, the man changed his mind. He wrote to the U.S. clinic and said that he was withdrawing his consent for the release of the embryos to his ex-partner.
The clinic then said they would not release them till the woman got a court order.
The Ontario Court of Appeal held that even though the parties had signed a separation agreement dealing with this issue, the Assisted Human Reproduction Act Regulations take precedence and the separation agreement does not apply.
Under the regulations, a "donor" is defined to include "couple who are spouses a the time the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo. The regulations go on to provide that if the donor is a couple, either spouse may withdraw consent before the embryo is used.
The man said he had changed his mind about wanting his ex-partner to be able to use the excess embryos to create a child, even though his ex said she would make no claim against him for child support.
The takeaway: if you are having a child by assisted human reproduction, you must consult a lawyer who is versed in this complex area of law (In fact BC law requires that you have a pre-conception contract if you are going to conceive with donated material or with a surrogate).
Feel free to contact our office, or any of the members of the working group Fertility Law BC, (www.fertilitylawbc.com) for assistance.