Property or Custody? Genetic material in family law disputes
Reproductive technology has significantly advanced in recent years allowing more individuals to become parents. While this technology presents more options to couples struggling with infertility than ever before, it can also present a legal issue when their relationship ends. When a couple separates or divorces, who is entitled to the genetic material collected for the purposes of future conception and how can it be used?
In recent years there have been a few high-profile disputes concerning the use and ownership of embryos. In 2016, actress Sofia Vergara’s ex-fiancé filed a lawsuit for “custody” of the couples’ embryos created prior to their separation. In 2012, a woman in British Columbia brought a similar claim over four frozen embryos created by her and her husband nine years previously. Similar disputes have also arisen in relation to sperm or eggs donated to or purchased by couples prior to separation.
There have been relatively few cases on this issue in Canadian law. In the case of C.C. v A.W., 2005 ABQB 290, Justice Sanderman of the Alberta Court of Queen’s Bench considered whether the respondent who had gifted sperm to the claimant for her to use for the creation of embryos could later prevent her use of the embryos. Referring to the embryos at issue as “chattels,” the Court determined that the respondent’s gift of sperm was unqualified and that the embryos were the claimant’s property for her to use in any way she saw fit. Similarly, in the case of J.C.M v A.N.A., 2012 BCSC 584, Justice Russell of the British Columbia Supreme Court determined that sperm purchased by a couple prior to separation was to be considered property and was to be divided equally among the couple as would be the case with any other matrimonial property.
Undoubtedly, ownership and use of genetic material requires ethical and moral considerations, however, Canadian courts have made it clear that in the eyes of the law genetic material is property and should be treated accordingly.