Appendix 6 - Consent, Refusal, Embryo as Property

AuthorMaureen McTeer
[ 198 ]
– appendix 6 –
Consent, Refusal,
Embryo as Property
Consent and Refusal
Relevant Provisions: AHR Act, ss 7, 8
Note: No SCC-level litigation other than the Reference re: AHRA
Citation SH v DH, 2019 ONCA 454
Note: deals also with issue of human reproductive material as “property”
Provision(s) Considered: ss 2(d), 3 “donor” (b), 5– 8, 8(3), 61
Summary Married couple contracted with American ab to cre ate in vitro
embryos from two anonymous individuals, resulting in two
viable embryos. One child born following impantation. Parties
divorced. Wife wanted to have remaining embryo impanted
and husband initially consented but wished to withdraw his
consent. Wife successfully brought motion permitting her to
use embryo as motion judge applied principles of contract
and property aw and concluded that embryo should b e
released to wife for future use. Husband appealed.
Holding Appeal allowed
Reasoning Husband had unmitigated right to withdraw his consent and
this overtook any contractual agreement to contrar y. Parlia-
ment imposed consent-based rather than contract-based
model through legisation and reguations, and under those

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