Property Division, Sharing & The Matrimonial Home

Arizona may soon decide what happens to embryos after divorce

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Written by Russell Alexander / (905) 655-6335

Senate Bill 1393 would require courts to give frozen embryos to the spouse who “intends to allow the embryos to develop to birth.”

It was reported that “If both adults want to use the embryos to have a baby, the court would have to give them to the one who “provides the best chance” of successfully doing so. … [and that] the spouse who does not receive the embryos would not have parental rights or responsibilities to any resulting children unless they agree to them.”

“Opponents say it would interfere in infertility treatment, could force exes to become parents against their will, and is a back-door way to change the legal definition of personhood in Arizona.”

It was also reported that “The influential Center for Arizona Policy, an anti-abortion advocacy group, is pushing the legislation.”

In Canada, Do Sperm Cells Constitute “Property” Subject to Division After Separation?

We previously reviewed a British Columbia Court decision that reviewed whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

What is Ontario doing?

We previously reviewed the the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may enter into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

Obviously this is an evolving area of law for many jurisdictions with different governments and Courts having quite different approaches to the difficult question: What happens to embryos after divorce?

What do you think?

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.