Appendix 6 - Consent, Refusal, Embryo as Property

• Author: Maureen McTeer
• Pages: 198-207

[ 198 ]

– appendix 6 –

Consent, Refusal,

Embryo as Property

UISPUDENTIAL SUMMAY

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