Canadian Lawyer

September 2019

The most widely read magazine for Canadian lawyers

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Page 23 of 55

FEATURE 24 Court of Appeal says consent can be withdrawn for use of frozen embryo S.H. v. D.H. is the first such case to be decided in which neither party — a divorced couple — had a genetic connection to the embryo A DIVORCED woman will not have the right to keep an embryo that she and her then-husband contracted to have frozen and preserved, because her former spouse has not given his consent to the embryo being used, the Court of Appeal for Ontario ruled recently. In S.H. v. D.H., 2019 ONCA 454, the appellate court found that it was the issue of consent under the Assisted Human Reproduction Act and not property or contract law that deter- mined the matter, even though the couple's contract had stipu- lated that the wife's wishes would prevail. Justice Michal Fairburn, who wrote the decision for the panel, "is saying you can't contract out the requirement for donor consent," says Adam Black, a family lawyer at Torkin Manes LLP in Toronto. "You can't make an agreement between the two of you that would be inconsistent with the legislation," i.e., the Assisted FOCUS ON FAMILY LAW "Contract law was the lens that was applied in the decision below, but we see that shift to the application of the act, notwithstanding the contract between the parties." Adam Black, Torkin Manes LLP

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