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How to Treat the “Other” Children of a Divorce: Embryo Division

If the relationship ends, and embryos remain, you may need the assistance of a lawyer to ensure that the other party does not use them without your consent, whether or not they contain your genetic material.

It is becoming more and more common for couples to undergo Fertility treatments to create their family. LBGTQ couples and those struggling with fertility will often look to IVF to have a child. 

If the relationship ends, and embryos remain, you may need the assistance of a lawyer to ensure that the other party does not use them without your consent, whether or not they contain your genetic material.

According to the Assisted Human Reproduction Act, “No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.” 

Consent is king when it comes to the use of genetic materials. In practice, the written consent is done at the fertility clinic directly prior to a transfer of an embryo. The Consent to Use Regulations set out rules about how the consent to use someone's reproductive material or embryos (or withdrawal of such consent) must be given and the purposes for which consent to use can be provided. These requirements must be met before a person, such as a clinic or doctor, can use a donor's reproductive material or in vitro embryo.

Beyond consent, the division and disposal of human reproductive material is fraught with constitutional, moral, ethical, and scientific concerns. There is an option to have the embryos donated for implantation. In Canada there exists a voluntary donation network where couples donate embryos for others to “adopt.”

The donation of embryos could be a gift. This is a common practice in the community as the cost of an IVF cycle can be prohibitive for many Canadians. The gift would transfer the ownership and therefore the power to decide the use of the embryos. 

If your ex spouse wishes to use the embryo, and you do not, you should obtain Independent Legal Advice. In the past, family members, former spouses and partners have struggled with this in litigation. Some have attempted to override the consent of their partners. One way in which this has been done is to treat the reproductive material as property. 

The AHRA itself does not define “property”, although the materials have been defined as property in a handful of Canadian cases in the past ten years. The nearest that the act approaches this discussion is s. (7)(b) of the Act which prohibits that sale of embryos, but it also sees that an embryo cannot be split. 

To avoid future conflict, you should have a lawyer draft an agreement between yourself and your ex-spouse to determine the future of the embryos in storage.


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