FEATURE
24 www.lawtimesnews.com
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withdrawn for use of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
