An Ontario Court has awarded a former couple's frozen embryo to the wife, who wishes to use it to try to establish a pregnancy, in the first case to denote an embryo as 'property'.

The embryo was one of four created using donor gametes and is not biologically related to either of the couple. Two embryos were not viable but one was successfully carried by the wife, and became the couple's son. If the remaining embryo results in a successful pregnancy, the baby would be a full genetic sibling to the boy.

'There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos,' said Superior Court Justice Robert Del Frate in his decision, which he based on contract law.

The ex-husband wanted the remaining embryo to be donated, and claimed that he was the rightful owner because he had paid US$11,500 for their creation; but Del Frate concluded that since both parties' names were on the contracts they signed at the US fertility clinic, it was clear they planned to jointly own them. 

The couple's agreement with the Ontario clinic where the remaining embryo is stored stated that in the event of divorce they would comply with the patient's wishes regarding frozen embryos. In that document, the wife was named as the patient.

Del Frate explained that his preferred option in this situation would be to divide the property evenly between the parties: 'However, there is only one embryo. As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties' intentions.'

It was agreed that the wife would not seek any support for any child resulting from implanting the embryo. She was ordered to pay her ex-husband US$1438 for his half-share in the remaining embryo, based on what he originally paid.

Toronto fertility lawyer Sara Cohen said: 'It is the first time, to the best of my knowledge, where a judge came out and explicitly stated that an embryo should be treated as property.' 

She added that it will be interesting to see if the same approach will be followed in cases where the embryos have a genetic connection to one or both of the parties. 

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Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.