“There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.
However, the case of J.C.M. v A.N.A., 2012 BCSC 584 (CanLII) is nonetheless instructive as it involved a dispute over gametes that the parties did not have a biological connection to. In that case, a couple purchased 13 sperm straws, and the court held that the sperm straws were property. They were subsequently divided between the parties, with one party receiving 7 straws and the other receiving 6 straws and $125 for her interest in one-half straw. See also C.C. v A.W., 2005 ABQB 290 (CanLII), 50 Alta. L.R. (4th) 61.
In the present case, the parties agreed that the embryos would be treated as property in their contracts with both the ISIS Regional Fertility Clinic and the Biology Associates. Neither party contests that the embryos should be treated as property. Accordingly, they must be divided as such. However, there is only one embryo.
The Family Law Act contains a comprehensive scheme for equalizing and determining ownership of marital assets. Both parties are listed on the contracts, and there was a clear intention that they would jointly own the embryos, regardless of their unequal financial contributions. Section 14(a) specifically states that: “the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants”.
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 is illegal to purchase and sell gametes and embryos, according to the Assisted Human Reproduction Act, S.C. 2004, c. 2:
Purchase of gametes
7 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a donor or a person acting on behalf of a donor.
Purchase or sale of embryos
(2) No person shall
(a) purchase, offer to purchase or advertise for the purchase of an invitro embryo; or
(b) sell, offer for sale or advertise for sale an in vitro embryo.
With this legislation, one must determine the legality of the contracts and whether they take precedence over the legislation. However, this was not argued before me and I do not plan on dealing with the conflict of laws issue arising on the facts.”