“Section 8 of the AHRA [Assisted Human Reproduction Act, S.C. 2004, c. 2] reflects deep societal respect for donor consent in the context of reproductive technology. Indeed, that is why it survived constitutional scrutiny in Reference re AHRA: see McLachlin C.J. at paras. 10, 156, and Cromwell J. at paras. 291, 294. Section 8(3) makes it a criminal offence to use an in vitro embryo without consent and, therefore, the absence of consent is an essential element of that criminal offence. Accordingly, were the respondent to go ahead and use the embryo in the face of the appellant’s lack of consent, she and those who assisted her in that endeavour would be, at a minimum, committing the actus reus of a criminal offence.
An individual cannot simply contract out of the criminal law and cannot contract away the protections afforded to them under that law. Any effort to do so is void ab initio: Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7 (CanLII), [2004] 1 S.C.R. 249, at para. 22; G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Carswell, 2011), at 364-68; S.M. Waddams, The Law of Contracts, 6th ed. (Aurora, Ont.: Canada Law Book Inc., 2010), at 419-25. Accordingly, despite having contracted in Ontario to permit the respondent to unilaterally deal with the embryo according to her wishes in the event of divorce, the appellant did not, nor could he have, contracted out of the protections afforded to him under s. 8(3) of the AHRA and the Consent Regulations. To the extent that the Ontario contract purports to do that, it is void.”