When one year ends and a new one begins, it is common to look ahead and make predictions about what may be in store in the coming year. In that vein, the decision of Del Frate J. in S.H. v D.H., ONSC 4506, caught my eye. Although the decision is a family law case, it is likely only a matter of time before we see similar cases in the estates context.
S.H. and D.H. were married in 2009. On February 1, 2012 they entered into a contract with a clinic in Georgia to purchase donated eggs and sperm. From that material, four embryos were created. Two were unviable and were destroyed. The two remaining embryos were shipped to a clinic in Mississauga, Ontario. The parties entered into a further contract with the Mississauga clinic. One embryo was subsequently thawed and implanted in D.H. On December 9, 2012 D.H. gave birth to the parties’ son. Nine days later, they separated. In the matrimonial proceedings, a dispute arose concerning the fourth and final embryo that was still frozen. D.H. wanted to implant the fourth embryo and attempt to conceive another child, while S.H. wanted the fourth embryo donated. Neither parent had a biological connection to the embryos, since they were created entirely from donated gametes.
Interesting, neither party argued the fact that the purchase and sale of gametes (as opposed to donation) is prohibited in Canada under section 7 of the Assisted Human Reproduction Act. Accordingly, the judge did not consider that issue and decided the case on a contractual analysis. In both the Georgia and Ontario contracts, the parties agreed to treat the embryos as property. In the Ontario contract, the parties agreed that in the event of separation or divorce the clinic would respect the wishes of the “patient”, which was defined as D.H., who elected to keep the embryo for implantation. In the Georgia contract, both parties selected donation if they no longer needed the embryos. However, the contract also provided that in the event of separation or divorce the embryos would be dealt with as directed by a court order of competent jurisdiction. The judge ruled that the Ontario contract set out the intentions of the parties in the event of separation or divorce and ruled in favour of D.H. As a result, D.H. was permitted to use the embryo for implantation, and S.H. was awarded monetary compensation equal to one-half of the value of one embryo (based on what they had paid to create four embryos).
In the course of the reasons, the judge cited an academic article by US professor Deborah Forman, who writes that the content of clinical consent forms and the process and circumstances surrounding their execution raise “serious doubts about their value in resolving disputes over embryos in the context of divorce” (at par. 36). She also notes that there are considerable differences in how they are treated in the case law of several US states, ranging from some jurisdictions that treat them as binding and enforceable to some that will not enforce them.
This decision and the comments from Professor Forman may foreshadow the types of disputes we could see in the estates context around the provision of consent for an individual’s preserved genetic material to be used by the surviving spouse after that individual’s death for the purpose of conceiving a child. In this decision, the judge clearly stated that “unless legislative changes are made, this court must decide disputes such as this one based upon the agreements signed and the parties’ intentions” (at par. 38). If the case law in the context of posthumous conception takes a similar approach in upholding such agreements, it is a reminder to estate planners of the importance of asking clients if they have stored genetic material and reviewing any written agreements the client has entered into regarding the storage and use of such material. To the extent there is an intention to consent to posthumous conception, such intention and consent should be clearly documented, and ideally revisited periodically so that it remains current and informed.