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Modern love? Divorced couple battles it out in court over fate of an embryo

Neither has a biological connection to the child, since they bought the sperm and egg from a catalogue 
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In a precedent-setting case, a Sudbury judge ruled last month that a woman has the right to an embryo she and her ex-husband purchased, even though her former partner opposed the idea. (Supplied)

In a precedent-setting case, a Sudbury judge ruled last month that a woman has the right to an embryo she and her ex-husband purchased, even though her former partner opposed the idea.

The case is unique because neither the woman or man have a biological connection to the embryo. Instead, they bought the sperm and eggs from a catalogue, based on the background of the donors.

"This is the first case in Canadian legal history where two people who have no biological connection to an embryo are fighting over how it's used," said Dale Brawn, the lawyer for the unnamed woman.

The couple were never intimate, Brawn said, but were friends from high school. Finding themselves in their 40s and still wanting children, they decided to get married for the purpose of having children and becoming parents.

“It was a marriage of convenience,” he said. “They thought they could have a child together to make a family."

They bought the eggs and sperm, which were shipped to a facility in Atlanta, Ga., to be fertilized. Four embryos were created, only two of which were viable.

One was implanted in the woman and  she gave birth to a healthy boy in 2012. The other is currently frozen in a facility in Mississauga.

While they tried to co-parent, Brawn said they had some significant disagreements over how to raise the child, and later divorced. While the mother has no biological link to the remaining embryo, she wants it implanted in her so her son will have a biological sibling.

The ex-husband was opposed, fearing that he could become liable for support for the second child, even though he has no connection to it.

"He wants it given away to a third party or used for scientific research," Brawn said.

But Brawn argued to Justice Robert Del Frate that there's no basis in law for his concerns.

"He won't be paying child support, he won't have access to the child, he'll have nothing to do with it," he said. "We argued in court that the law is very clear -- he has no connection to the child biologically, he has no relationship with the mother ... and she has indicated she is not seeking child support.

"Therefore, we argued his concerns should be ignored, and the judge agreed with that."

The judge relied on the terms of the contract the couple signed regarding the embryos, which stated in the case of a divorce, the embryos would go to the mother. While there have been past cases where surrogate mothers or sperm donors have fought for access to the child despite the contract they signed, Brawn said the judge ruled this case was fundamentally different.

While you can withdraw your consent when there's a biological link, in this case, Del Frate ruled that contract law should take precedence.

"That's pretty controversial, because the federal statute says either party can withdraw their consent," Brawn said. "What he's saying in this case is, you can withdraw your consent, because if you used your sperm, you might no longer want to be liable for child support. Because it would be your biological child and you should have the right to withdraw your consent ... in those cases.

"But in this case, when you don't have a biological connection to the embryo, you have no right to change your mind, because it would have an adverse effect on the woman who wants to use it, and you gain no benefit, because you have no connection to the embryo anyways."

The ex-husband has 30 days to appeal the decision, which was released July 25. Brawn says he's not sure whether he will, but if the decision stands, it creates a precedent in Canadian law.

"The very significant precedent is -- and this would affect not only cases like this, where neither parent has a biological connection, but all embryo cases -- the judge said that contract law should prevail," he said. "So in future, if a couple decide they want to have an embryo created, they can't withdraw their consent or change their mind."

Read the full decision here.


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Darren MacDonald

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