



COURT OF APPEAL FOR ONTARIO

CITATION: S.H. v. D.H., 2019 ONCA 454

DATE: 20190531

DOCKET: C65804

Pepall, Hourigan and Fairburn JJ.A.

BETWEEN

S.H.

Applicant (Appellant)

and

D.H.

Respondent

Shantona Chaudhury and Brodie Noga, for the appellant

John J. Adair, for the respondent

Heard: January 25, 2019

On appeal from the judgment of Justice Robert G. S. Del Frate
    of the Superior Court of Justice, dated July 25, 2018, with reasons reported at
    2018 ONSC 4506.

Fairburn J.A.:

OVERVIEW

[1]

The parties are divorced. When they were still married, they decided to
    use
in vitro
fertilization (IVF) in their efforts to have a child.
    IVF involves the combining of sperm and ova outside of the human body to create
    embryos that can be later transferred to a uterus to continue developing. The
    parties contracted in 2011 with a lab in the United States to create the
in
    vitro
embryos. The lab combined the reproductive material from two
    anonymous individuals whom the parties had selected and four
in vitro
embryos
    resulted, two of which were viable. Neither party contributed their own
    reproductive material to the embryos. The viable embryos were then frozen in a
    process known as cryopreservation.

[2]

Shortly after their creation, the embryos were sent to a lab in Canada
    and one was implanted into the respondent. She became pregnant and a child was
    born. Shortly after the birth of that child, who is now six years of age, the
    couple separated and eventually divorced. They share custody of their child.

[3]

The dispute that lies at the centre of this case is about the use that
    can be made of the remaining cryopreserved
in vitro
embryo. The respondent
    (ex-wife) wishes to have that embryo implanted into her. Any child resulting
    from that process would be a full biological sibling to the parties child. The
    respondent says that if the IVF is successful, and a child is born, she will
    not seek any form of child support from the appellant. Although the appellant (ex-husband)
    consented to the respondents use of the embryo when it was created, he has
    changed his mind and now wishes to withdraw his consent. At this stage, the
    appellant is only prepared to have the embryo donated to a third party.

[4]

The appellant wrote to the Canadian lab storing the embryo and withdrew
    his consent to the respondents use of the embryo. In light of that written withdrawal
    of consent, the lab said that it would not release the embryo to the respondent
    without a court order. Accordingly, the respondent brought a motion seeking an order
    permitting her to use the embryo. The motion judge applied principles of
    contract and property law to conclude that the embryo should be released to the
    respondent for her use. This is an appeal from that decision. I conclude that
    neither contract nor property law principles govern in this case.

[5]

For the reasons that follow, I would allow the appeal. This decision
    turns on the interpretation and application of the governing legislation and
    regulations. In some jurisdictions, where the state has not regulated in the
    field of reproductive technology, private law contract principles apply.
[1]
In Canada, however, Parliament has imposed a consent-based, rather than a contract-based,
    model through legislation and regulation. As I will explain, the correct
    interpretation and application of the relevant legislative framework determines
    the result in this case.

[6]

Many provisions of the
Assisted Human Reproduction Act
, S.C.
    2004, c. 2 [
AHRA
], and the
Assisted Human Reproduction (Section 8
    Consent) Regulations
, S.O.R./2007-137 (Consent Regulations), are engaged
    in this decision and discussed in detail later on.
[2]
The most central are the following: (1) s. 8(3) of the
AHRA
prohibits the use of an
in vitro
embryo for any purpose without regulation-compliant
    written consent; (2) s. 10(1)(b) of the Consent Regulations defines
    the term donor to include a couple who are spouses at the time the
in
    vitro
embryo is created, even where neither person within the couple
    contributes reproductive material to the embryo; and (3) s. 14(3) of the
    Consent Regulations provides that if the donor is a couple, either spouse may
    withdraw consent before the embryo is used.

[7]

For the reasons that follow, I conclude that the parties together remain
    the disputed embryos donor under s. 10(1)(b) despite their separation and
    divorce, and, even though they are no longer married, s. 14(3) allows the
    appellant to withdraw his consent to the respondents use of the embryo. The
    appellants unmitigated right to withdraw his consent overtakes any prior
    contractual agreement to the contrary and is dispositive in this case.

THE MOTION JUDGES DECISION: CONTRACT AND PROPERTY LAW

[8]

The motion judges task was a difficult one. This was the first case to
    consider the disputed post-separation use of an
in vitro
embryo made
    up of donated reproductive material. Unfortunately, neither party argued the
    case before the motion judge with reference to the Consent Regulations. Indeed,
    it does not appear that those regulations were even brought to the motion judges
    attention. Instead, both parties took the position that the embryo should be
    treated as property governed by contract law. In light of those positions, it
    is unsurprising that the motion judge decided the case as he did.

[9]

The motion judge first looked to the contracts that the parties entered
    into with reproductive companies in both Georgia and Ontario. The parties signed
    two contracts with Reproductive Biology Associates (RBA) in Georgia, the
    company that actually created the embryos. The first RBA contract dealt with
    the procedure that would be followed in creating and transferring the embryos. The
    second RBA contract related to the cryopreservation of the embryos. That
    contract reflects the parties agreement that the frozen embryos would be
    donated if the parties were unable to make a decision as to their disposition
    in the future. In the event of divorce, the parties acknowledged that they
    understood that the legal ownership of any stored embryo(s) would be
    determined in a property settlement and released as directed by order of a
    court [of] competent jurisdiction.

[10]

The
    parties also signed a contract with ISIS Regional Fertility Centre (now known
    as the Reproductive Care Centre, RCC) in Mississauga, Ontario. The Ontario
    contract allows for the cryopreserved embryos to be thawed and used for the
    couples own reproductive use. The contract names the respondent as the
    patient and the appellant as the partner. The parties contracted that, in
    the event of divorce or legal separation between the patient and her partner,
    the RCC would respect the patients wishes. The Ontario contract also
    provides for a withdrawal of consent as follows:

Prior to providing this consent,
    we received and reviewed written information from ISIS [now RCC] confirming
    that our cryopreserved
in vitro
embryo(s) would be used only for the
    purposes which we authorized in this Consent
and that we
    could withdraw our consent to the use of our
in vitro
embryo(s) at any time provided that we did so in the manner
    explained
. [Emphasis added.]

[11]

Ultimately,
    the motion judge held that the embryo was property covered by the contracts. As
    the parties specifically contracted in Ontario to respect the [respondents] wishes
    upon divorce, the motion judge concluded that it would be contrary to contract
    law to overtake those wishes now. He did not specifically address why the
    withdrawal of consent provision in the Ontario contract did not apply so as to
    permit the appellant to withdraw his consent.

[12]

The
    motion judge was aware of s. 7(2)(b) of the
AHRA
, prohibiting the
    purchase and sale of embryos, but made the observation that an embryo cannot be
    split. In the end, he resolved that the embryo should be released to the
    respondent for her use, upon her reimbursing the appellant for half of the cost
    of creating the embryo. As found by the motion judge, the total cost for
    creating all of the embryos was $11,500 USD and half of the cost of one was $1,438 USD.

[13]

For
    the following reasons, I arrive at a different conclusion than the motion judge.

THE PARTIES POSITIONS ON APPEAL

[14]

The
    respondent contends that the parties turned their minds to what would happen to
    the embryo in the event of divorce and that the appellant consented under the
    Ontario agreement to have the respondents wishes prevail. She says that this
    was a lawful contract from which the appellant cannot now resile. Her position
    accords with the motion judges finding that the appellant signed the Ontario
    contract with his eyes wide open, agreeing that in the event of divorce or
    legal separation the Agent shallrespect the [respondents] wishes.

[15]

The
    appellant does not dispute that he signed that contract. He does not suggest
    that he did not understand what he was signing or that he was under any form of
    duress, undue influence or mental incapacity at the time that he signed. Rather,
    he accepts that his desire to withdraw his consent arises from a change of mind.
    His position is that changing his mind is precisely what the
AHRA
and
    Consent Regulations permit him to do.

[16]

The
    appellant argues that, despite their current status as ex-spouses, the parties
    together remain the donor of the
in vitro
embryo. As the parties
    together remain the embryos donor, together they must consent to the same use
    of the embryo before the embryo may be put to that use. The appellant contends
    that, in a situation like this one, where the embryos donor is a couple, s.
    14(3) of the Consent Regulations permits either person within the couple to
    withdraw consent to the embryos use. Section 14(3) reads:

If the donor is a
    couple, the consent of the donor may be
withdrawn by
    either spouse
or common-law partner. [Emphasis added.]

[17]

The
    appellant argues that he has properly withdrawn his consent in writing and in
    accordance with the regulations. Accordingly, if the respondent were to have
    the embryo implanted into her, she would do so without donor consent and this
    would constitute a criminal offence under s. 8(3) of the
AHRA
.


[18]

The
    respondent maintains that there is a flaw in the appellants argument, hinging on
    the fact that the appellant is no longer the respondents spouse. Although the
    respondent acknowledges that s. 14(3) allows for one spouse or common-law
    partner to withdraw consent to use of an embryo when the donor is a couple,
    s. 1(2) of the Consent Regulations removes the appellant from the category of
    spouse. Section 1(2) reads:

In these Regulations,
    the term spouse does
not include
a person who, at
    the relevant time,
lives
    separate and apart from the person to whom they are married
because of the breakdown of their marriage. [Emphasis added.]

[19]

The
    respondent asserts that s. 1(2) clearly deprives the appellant of his status as
    a spouse and, accordingly, he cannot invoke the protections that would have
    otherwise been available to him under s. 14(3), but for the parties separation
    and divorce. The respondent contends that s. 1(2) is intended to honour and
    protect a couples joint decisions made during the course of a marriage,
    preferring those decisions to the whims of former spouses. There is nothing
    unfair or contrary to public policy about precluding the appellant from
    withdrawing his consent now. The respondent maintains that it makes good sense
    to hold the appellant to what he agreed to during the course of his marriage to
    the respondent, prior to when the parties relationship became admittedly
    acrimonious.

[20]

Even
    if she is wrong about the appellants inability to withdraw his consent under
    s. 14(3) of the Consent Regulations, the respondent argues that the appellant specifically
    contracted out of any right that he may have otherwise had under those
    regulations. Having contracted those rights away, the respondent maintains that
    the appellant cannot now summon their assistance. In contrast, the appellant
    maintains that it is not possible to contract out of the protections afforded under
    the
AHRA
and Consent Regulations. This argument rests on the fact that
    s. 8(3) of the
AHRA
constitutes criminal law and criminal law
    protections cannot be contracted away.

ANALYSIS

[21]

I
    find that a proper application of the principles of statutory interpretation
    leads to the conclusion that s. 14(3) of the Consent Regulations grants the
    appellant the right to withdraw his consent to the respondents use of the
    embryo and s. 1(2) does not deny him that right. I further conclude that a
    contract cannot preclude the appellant from resorting to the protections
    afforded to him by the combined effect of the statute and its animating
    regulations.

(1)

Introduction

to the
AHRA
and Consent Regulations: Criminal
    Law

[22]

There
    are few things as fundamental to the human experience as the decision whether or
    not to have children. New reproductive technologies have expanded the
    availability of that choice.

[23]

With
    the development of new reproductive technologies came deep moral and ethical
    issues. These issues have been, and continue to be, the subject of extensive
    and important public debate. By the 1980s, Canadians were alive to the social,
    moral and ethical challenges arising from new forms of reproductive technology.
    In 1989, the Royal Commission on New Reproductive Technologies (the Baird
    Commission) was established, with the mandate of examining how those
    technologies should be handled in Canada. The Commissions work resulted in
    what is commonly referred to as the Baird Report: see
Proceed with Care:
    Final Report of the Royal Commission on New Reproductive Technologies
(Ottawa: Minister of Government Services Canada, 1993)
.

[24]


The
    Baird Report concluded that there was an urgent need for strong, well-defined
    government regulation to set clear boundaries for the use of reproductive
    technologies. The general acceptance of that conclusion culminated in the
AHRA
s
    enactment.

[25]

In
    its original form, the
AHRA
governed a broad range of reproductive
    technologies. Many of the provisions were designed to avoid abuse of those technologies
    in a way that might damage individuals  both existing and yet to be conceived
     and ultimately society:
Reference re Assisted Human Reproduction Act
,
    2010 SCC 61, [2010] 3 S.C.R. 457, at para. 4. For instance, s. 5 of the
AHRA
prohibits human cloning, altering the genome of human cells, and
    transplanting reproductive material from non-human life forms into human beings
    and
vice versa
. Sections 6 and 7 prohibit payment for surrogacy, set a
    minimum age requirement for surrogacy, and prohibit the purchase and sale of
in
    vitro
embryos. And s. 8
prohibits
    the
use of reproductive material and
in vitro
embryos
    without consent.

[26]

Section
    8(3) of the
AHRA
and the Consent Regulations that amplify it lie at
    the heart of this appeal. Section 8(3) reads:

No person shall make use
    of an
in vitro
embryo for any purpose unless the
donor has given written consent, in accordance with the
    regulations
, to
    its use for that purpose
. [Emphasis added.]

[27]

While
    much of the
AHRA
was struck down as
ultra vires
the federal
    governments criminal law power, s. 8 of the
AHRA
survived that
    constitutional attack because it falls squarely within Parliaments power under
    s. 91(27) of the
Constitution Act, 1867
to legislate in the area of criminal law:
Reference re
    AHRA
,
at paras. 48-51,
    89-92, 110-12, 288-91.
[3]
Accordingly, s. 8(3) constitutes a criminal offence, a conviction for which is
    accompanied by a potentially substantial sentence under s. 61 of the
AHRA.
To
    avoid criminality under s. 8(3) of the
AHRA
, a person who uses an
in
    vitro
embryo must have the prior written consent of the embryos donor,
    which consent is provided in accordance with the regulations.

[28]

Part
    3 of the Consent Regulations that came into effect after the
AHRA
was
    proclaimed in force governs consent for purposes of s. 8(3) of the
AHRA
.
    Neither s. 8(3) of the
AHRA
nor the Consent Regulations were
    considered by the motion judge. The nub of the parties dispute in this court
    arises from their disagreement over whether those regulations permit the
    appellant to withdraw the consent that he provided when the parties were still
    married, a consent that specifically granted the respondent the unilateral
    right to use the embryo as she wished in the event of the couples divorce.

[29]

Relying
    upon the principles of statutory interpretation, I will explain why the provisions,
    read as a whole, make it clear that the appellant may withdraw his prior
    written consent. I will then go on to explain why the appellant did not
    contract out of his right to do so.

(2)

The Principles of Statutory Interpretation

[30]

The
    modern approach to statutory interpretation requires the court to read the
    words of a statute in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament: see
Rizzo & Rizzo Shoes Ltd. (Re)
,

[1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v.
    Rex
,

2002 SCC 42,
    [2002] 2 S.C.R. 559, at para. 26, both citing Elmer A. Driedger,
Construction
    of Statutes
, 2d ed.

(Toronto: Butterworths, 1983) at 87. A
    textual, contextual and purposive analysis must be applied to find a meaning
    that is harmonious with the entire Act:
Canada Trustco Mortgage Co. v.
    Canada
,

2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. The
    subject provisions must be considered within the statute as a whole.

[31]

Where
    the relevant provisions are within a regulation, then the regulation must be
    read concurrently with, and in the context of, the enabling legislation:
Hickman
    Motors Ltd. v. Canada
,

[1997] 2 S.C.R. 336, at para. 37;
State
    Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of
    Canada
, 2015 ONCA 699, at para. 68;
Bristol-Myers Squibb Co. v. Canada
    (Attorney General)
, 2005 SCC 26, [2005] 1 S.C.R. 533, at paras. 37-38. Regulations
    must also be interpreted in accordance with the modern principle, and will
    generally be interpreted using the same rules and techniques as statute law,
    albeit never losing sight of the context of the enabling provisions that give
    rise to the regulations that complete and implement the statutory scheme: Ruth
    Sullivan,
Sullivan on the Construction of Statutes
, 6th ed. (Markham,
    Ont: LexisNexis, 2014) at §13.18; Pierre-
Andr
é
C
ô
t
é
,
The Interpretation of legislation in Canada
, 4th
ed. (Toronto: Carswell, 2011) at
    26-27.



(3)

Applying the Principles of Statutory Interpretation

[32]

Applying
    the modern principles of statutory interpretation to the regulatory and
    statutory scheme as a whole, I conclude that in the circumstances of this case,
    the appellant may withdraw his consent to the respondents use of the embryo.
    The appellant is not bound to his prior written consent, distilled in the form
    of an otherwise lawful contract, because the statutory and regulatory provisions
    fundamentally preserve a donors inherent right to change her or his mind about
in vitro
embryo use.

[33]

Four
    broad considerations lead me to this conclusion: (i) the critical role
    that consent plays in the statutory scheme; (ii) the fact that donor
    couple status survives separation and divorce where the former partners have the
    same genetic relationship to the embryo (either both are genetically connected
    or both are not genetically connected to the embryo); (iii) the fact that the lawfulness
    of donor consent to embryo use is predicated on the donor knowing about the
    ability to withdraw that consent; and (iv) the plain meaning of s. 1(2).

(i)
Consent plays a central role in the statutory
    scheme

[34]

Understanding
    the role that consent plays in the realm of reproductive technology at large in
    Canada, and more specifically in the realm of
in vitro
embryo use,
    provides an important context against which the operative provisions must be
    considered.

[35]

The
    crucial importance placed upon consent in the area of reproductive technology, and
    the requirement that it be voluntary and informed, was squarely addressed in
    the lead-up to the enactment of the
AHRA.
For instance, as noted

in
    the House of Commons Standing Committee on Health,
Assisted Human
    Reproduction: Building Families
(Ottawa: Public Works and Government
    Services Canada, December 2001) (Chair: Bonnie Brown) at 6:

[I]nformed choice can lead to
    either informed refusal or informed consent. We want individuals participating
    in assisted human reproduction to be able to
choose
    freely on the basis of full information
of risks as well as benefits
    pertaining to medical, legal, ethical, social, or psychological implications.
    For the resulting children, they must be able to rely on the involved adults.
    For participating adults, this can mean having full understanding of short-term
    as well as long-term ramifications including the consequences for others who
    may be involved.
We want to ensure that consent is given
    freely for all aspects of assisted human reproduction such as treatment,
    donation, and research. We also want continual assessment of the consent that
    is given and an acknowledgement that, for most activities, consent may be
    withdrawn at any time
. [Emphasis added.]

[36]

Free
    and informed consent lies at the heart of the entire
AHRA
, central to
    the scheme established by the Act and intimately tied to moral concerns:
Reference
    re AHRA
, at para. 142.
[4]
The statement of principles in s. 2(d) of the
AHRA
underscores
    the statutory emphasis on consent:

[T]he principle of free
    and informed consent must be promoted and applied as a
fundamental
    condition
of the use of human reproductive technologies[.] [Emphasis
    added.]

[37]

Parliaments
    deliberate decision to criminalize the use of reproductive material and
in
    vitro
embryos in the absence of written donor consent reflects deep moral
    concerns about human reproduction and its intersection with human autonomy. Those
    moral concerns were front and centre when considering whether it was acceptable
    for the criminal law to govern donor consent under s. 8 of the
AHRA
.
    As McLachlin C.J. said in
Reference re

AHRA
, at para. 90:

At the heart of s. 8 lies the
    fundamental importance that we ascribe to human autonomy. The combination of
    the embryos moral status and the individuals interest in his or her own
    genetic material justify the incursion of the criminal law into the field of
    consent. There is a consensus in society that the consensual use of
    reproductive material implicates fundamental notions of morality. This confirms
    that s. 8 is valid criminal law.

[38]

It
    is against that statutory context  where consent plays such a pivotal role in
    protecting human autonomy  that the legal contours of donor consent and, more
    importantly for this case, donor withdrawal of consent to
in vitro
embryo
    use must be considered. The idea that donor consent can become frozen in time,
    rendered unsusceptible to changes of mind, belies the central importance placed
    upon consent in the statutory scheme.

(ii)

Donor couple status survives separation and
    divorce in situations involving equal genetic relationships to the embryo

[39]

Recall
    that, to avoid criminal conduct through embryo use, s. 8(3) of the
AHRA
requires
    the written consent of the donor. Recall also that s. 14(3) of the Consent
    Regulations say that [i]f the donor is a couple, the
consent
    of the donor may be withdrawn
by either spouse (emphasis added). Consequently,
    in determining whether the appellant may withdraw his consent, it is first
    necessary to determine whether he is a donor. I conclude that the answer to
    this question is yes and that, despite
their separation and
    divorce, the parties together remain the
in vitro
embryos donor
    today.

[40]

Section
    10(1) of the Consent Regulations governs donor status. It stipulates that a
    donor is an individual or
individuals
for whose
    reproductive use an
in vitro
embryo is created (emphasis added).
    Where an individual has no spouse or common-law partner at the time the
in
    vitro
embryo is created, the individual for whose use the embryo is
    created becomes the donor of the embryo: s. 10(1)(a). That provision does not
    apply to this case because the parties were married at the time that the embryo
    was created for them. This leads us to s. 10(1)(b) of the Consent
    Regulations.

[41]

Section
    10(1)(b) specifies that a couple who are
spouses
or common-law partners at the time

the
in vitro
embryo is
    created,
regardless of
    the source of the human reproductive material used to create the embryo
,
    become the donor of the embryo (emphasis added). Because the parties were
    married spouses when the embryo was created for their reproductive use, together
    they became the embryos donor as defined under the Consent Regulations; they
    became what I will refer to as a donor couple. The fact that neither
    contributed their own reproductive material to the process is irrelevant to
    their status as a donor couple.

[42]

Importantly,
    donor couple consent for purposes of s. 8(3) of the
AHRA
is governed
    by s. 10(2) of the Consent Regulations:

If the donor is a
    couple, the consent of each spouse or common-law partner must be
compatible
in order for the consent of the donor to
    comply with the requirements of this Part. [Emphasis added.]

[43]

This
    means that if the consent of a donor couple is to satisfy the requirements of
    s. 8(3) of the
AHRA
 [n]o person shall make use of an
in vitro
embryo
    for any purpose
unless the donor
has given written
    consent, in accordance with the regulations (emphasis added)  each spouse or
    each common-law partner must consent to the same use of the embryo. They must
    have a meeting of the minds in terms of how the embryo will be used.
[5]
Although the Ontario contract reflects the donor couples compatible consent
    to the respondents use of the embryo in the event of divorce, a consent that
    was provided over seven years ago, the appellant has changed his mind and wishes
    to now withdraw that consent. If he is permitted to do so, the required compatibility
    of consent will be destroyed.

[44]

While
    s. 10(2) governs how donor couple consent is achieved, s. 14(3) governs
    how donor couple consent can be later undone. This raises the question: despite
    their separation and divorce, do the parties remain a donor couple today? The
    answer is yes.

[45]

Following
    separation or divorce, the Consent Regulations only remove donor status in one
    scenario that does not apply to this case. Where a former common-law or married
    couple had an embryo created using reproductive material from only one of the
    individuals in the couple, combined with the reproductive material of a third
    party, upon relationship breakdown, s. 10(3) of the Consent Regulations
    deems the genetically contributing former spouse or common-law partner to be the
    embryos sole donor. Accordingly, after separation or divorce, the individual
    in the former couple who is genetically connected to the embryo will move from
    donor couple status under s. 10(1)(b) to single donor status under s. 10(1)(a)
    of the Consent Regulations. The non-genetically contributing individual in the
    former couple will completely lose his or her donor status.

[46]

Section
    10(3) of the Consent Regulations is the only provision that operates to strip donor
    status. The provision exists because donor status is not automatically stripped
    by separation and/or divorce. Accordingly, where former spouses or common-law
    partners stand in the same genetic position vis-à-vis an embryo (either both
    individuals are genetically connected to it, or neither individual is genetically
    connected to it), separation and/or divorce do not change the donor couple status.

[47]

In
    this case, the parties have the same genetic status in relation to the disputed
    embryo  neither is genetically connected to that embryo. Consequently, their
    donor couple status remains intact, meaning that they together remain the
    disputed embryos donor.

[48]

Particularly
    in light of the importance placed upon consent in the statutory and regulatory
    scheme as a whole, the appellants continued status as a donor goes a
    significant distance to assisting in answering whether s. 14(3) permits him to
    withdraw his consent to the respondents use of the embryo. An interpretation
    of s. 14(3) that could preclude a person who remains part of the donor
    couple from having an ongoing say about how the donor couples embryo may be
    used would run counter to the legislations emphasis on consent.

[49]

Forcing
    donors to stick with the decisions that they made at a very different point in
    their lives, simply by virtue of the fact that their marriages did not
    continue, could have implications for donors under the statute and regulations.
    This concern is perhaps best illustrated by considering a donor couple where
    both individuals in the couple contribute their genetic material to the
    creation of embryos. In that situation, neither person would lose their donor
    status after separation and/or divorce. Yet the respondents position would
    result in preventing even those genetically contributing former spouses  each
    with an equivalent genetic connection to the embryo  from withdrawing their
    consent to the use of an embryo. This could lead to situations where people
    could have genetically related children born to ex-spouses years after marriage
    breakdown.

[50]

I
    do not accept an interpretation of s. 14(3) that would lead to this incongruous
    result, one that is antithetical to the emphasis placed upon donor consent and
    its essential relationship to the ability to withdraw consent.

(iii)

The lawfulness of donor consent rests on the
    donor knowing that the consent can be withdrawn

[51]

The
    ability of a former spouse who is still part of the donor couple to withdraw
    consent under s. 14(3) is also apparent from the legal requirements for
    obtaining a legally compliant consent in the first place. Those requirements
    include that the donor be informed of his or her right to withdraw consent
    prior to the use originally consented to.

[52]

Section 13(1) requires that before an
in vitro
embryo
is used
,
    the person wishing to make use of it have the written consent of the embryos
    donor, stating that it may be used for that purpose. Importantly, the
    lawfulness of that written consent relies on meeting the requirements of s. 12
    of the Consent Regulations, including ss. 12(b) and 12(c)(i)
.

[53]

Section
12
    requires that before an
in vitro
embryo is used, the person wishing to
    make use of it must have a document signed by the embryos donor, specifically
    acknowledging that before the donor consented, the donor was informed in
    writing that: if he or she wished to withdraw consent, that the withdrawal
    would have to be in writing (s. 12(b)); and that the withdrawal of consent
    would only be effective if the person intending to make use of the
in
    vitro
embryo is notified in writing of the withdrawal before the use of
    the embryo (s. 12(c)(i)).

[54]

Read
    together, ss. 12 and 13 of the Consent Regulations make clear that at the time
    that donors initially give their consent, they must be informed in writing
    about how to withdraw that consent. Further, the donors must acknowledge in
    writing that they have been informed of this fact. And, even further, anyone
    making use of an
in vitro
embryo must have that written donor
    acknowledgement in hand before using the embryo.

[55]

These
    provisions demonstrate the inextricable link between donor consent and
    withdrawal of consent. They eschew any notion that donor consent becomes
    crystalized at the moment it is initially given. Instead, the provisions
    clearly place donor consent on a continuum from the time an embryo is created
    to the time it is used. In order to extract a fully informed consent, the donor
    must be informed that at any point along that continuum, the donor can change
    her or his mind by withdrawing consent in writing. These provisions are
    entirely consistent with the central importance of consent in the area of
    reproductive technology.

[56]

If
    s. 14(3) were to be interpreted as the respondent suggests, it would mean that
    many donors would have provided their initial consent on the understanding that
    they could withdraw that consent, only to be told later that they could not do
    so because their marital status had changed. Such an approach would shake the very
    foundation of the original consent, undermining its voluntary and informed
    nature. The original consent would have been extracted on the basis of
    misinformation. I would not accept an interpretation of the regulations that
    would give rise to that inherently unfair result.

(iv)

The plain meaning of s. 1(2)

[57]

This
    leaves me to address the respondents submission that s. 1(2) of the Consent
    Regulations specifically deprives the appellant of the ability to withdraw his
    consent under s. 14(3) because he is no longer a spouse within the meaning of
    that term. I do not agree with the respondents interpretation of s. 1(2) or
    with the suggestion that it applies to s. 14(3).

[58]

For
    ease of reference, recall that s. 14(3) applies to donor couples and allows the
    consent of the donor [to be] withdrawn by either spouse. Recall also that s.
    1(2) removes from the term spouse, a person who, at the relevant time, lives
    separate and apart from the person to whom they are married because of the
    breakdown of their marriage.

[59]

I
    start by observing that s. 1(2) does not define the term spouse. Rather, it
    excludes a specific group of people from that terms reach: those who are in fact
    still married but whose marriages have broken down. In this case, the parties
    are not simply living separate and apart and their marriage has not simply
    broken down. Rather, they are no longer married. They have not been married for
    years. Accordingly, on their plain meaning, the words of s. 1(2) do not extend
    to this case.

[60]

This
    raises the questions, can s. 1(2) be offered an interpretation that exists
    harmoniously with the context, scheme and purpose of the
AHRA
and
    Consent Regulations and what is s. 1(2) intended to address? The answer is found
    in the temporal restriction placed upon s. 1(2)  the term spouse does not
    include a person who,
at the relevant time
, lives
    separate and apart (emphasis added).

[61]

The
    respondents position, that s. 1(2) excludes from the term spouse all those
    who are living separate and apart because of marital breakdown, fails to grapple
    with the temporal qualification embedded within that provision: at the
    relevant time. On the respondents interpretation of the provision, those
    words would be rendered meaningless. Remove them and the respondents suggested
    interpretation of s. 1(2) would remain unchanged. This approach would offend
    the principle of statutory interpretation that presumes that each word in a
    provision has meaning and plays a role in advancing the legislative purpose:
    Sullivan, at §8.23.

[62]

The
    appellant suggests that the words at the relevant time have a very specific
    meaning and drive the purpose for which the provision exists. I agree.

[63]

The
    purpose of s. 1(2) is not to deprive donors of
in vitro
embryos of the
    ability to withdraw their consent because of marital breakdown or divorce. The
    provision is designed to protect those people who are technically married, but
    living separate and apart because of marital breakdown, from becoming a donor
    couple under s. 10(1)(b) in the first place, simply by virtue of their marital
    status.

[64]

This
    reasoning is easily understood if one takes a hypothetical situation into
    account. Imagine two people who are married, but whose marriage broke down
    years ago. While they have not obtained a divorce, they moved apart and have
    not spoken for years. Now imagine that one of those estranged spouses decides
    to pursue IVF and has an embryo created. Without the operation of s. 1(2), donor
    couple status could be unwittingly bestowed upon the estranged spouses by
    virtue of s. 10(1)(b), imposing donor status on a couple who are spouses
at the time
the
in vitro
embryo is created
    (emphasis added).

[65]

At
    a minimum, s. 10(1)(b) could create serious confusion about donor status in the
    context of separated, but still married couples. Section 1(2) clears up any
    potential confusion. The reference to the relevant time within s. 1(2) must
    be read as the time that the embryo is created. Notably, the wording of s.
    10(1)(b) dovetails with that approach, imposing donor couple status on couples
    who are spouses
at the time
that the
in
    vitro
embryo is created.

[66]

Section
    1(2) is a clear means by which to ensure that those whose marriages have broken
    down do not become donor couples simply by virtue of the fact that they have
    not obtained divorces. Only in this way do both spouses receive clear protection
    from unintended donor couple status.

[67]

By
    interpreting s. 1(2) in this way, an interpretation that respects the temporal
    restriction contained within the provision, the statute and Consent Regulations
    work as a harmonious whole.

(v)

Conclusion

[68]

Reading
    the words of the
AHRA
and the Consent Regulations as a whole, I
    conclude that s. 14(3) must be read as permitting either person within a donor
    couple to withdraw their consent to
in vitro
embryo use. The use of
    the term spouse in s. 14(3) was not intended to preclude divorced spouses,
    who together still constitute a donor couple, from withdrawing their consent. Rather,
    considering s. 14(3) in the context of the other provisions, and against
    the overarching importance of ongoing and fully informed consent in the
    statutory and regulatory scheme, I conclude that, regardless of ones changed
    marital status, while donor status continues, so too does the right to withdraw
    consent. The use of the term spouse in s. 14(3) is, therefore, nothing more
    than a short-hand way in which to make clear that either party within the donor
    couple  a donor couple that survives divorce in a case like this  may
    withdraw their consent.

(4)

The Parties Could Not Contract Out of the s. 14(3) Right to Withdraw
    Consent Prior to Use

[69]

The
    respondent maintains that, even if the Consent Regulations permit someone in
    the appellants position to withdraw consent, the appellant contracted out of
    that right when he signed the Ontario contract. The appellant agreed in the
    Ontario contract that, in the event of divorce, the respondents wishes about
    embryo use would be respected. The respondent says that this court should hold
    him to that contract.

[70]

Consent
    in the legislative context involving reproductive technology is fundamentally
    at odds with contract law. The first permits unilateral changes of heart that
    the second precludes. The very essence of s. 8(3) of the
AHRA
and the
    Consent Regulations is to allow for an individuals right to consent, a right
    that is inherently linked to respect for the consenters state of mind. It
    would undermine the notion of consent embodied in the
AHRA
and the
    Consent Regulations to freeze it at a specific moment in time and preclude
    changes of mind, changes that may arise from changed life circumstances
    inherent to the human condition.

[71]

Section
    8 of the
AHRA
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 appellants
    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.

[72]

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, [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.

[73]

In
    any event, I do not read the Ontario contract as doing that. As previously
    noted, the Ontario contract on which the respondent relies allowed for the
    withdrawal of the appellants consent. As set out above, it included the
    following clause:

Prior to providing this consent,
    we received and reviewed written information from ISIS [now RCC] confirming
    that our cryopreserved
in vitro
embryo(s) would be used only for the
    purposes which we authorized in this consent
and that we
    could withdraw our consent
to the use of our
in vitro
embryo(s)
at any time
provided that we did so in
    the manner explained. [Emphasis added.]

[74]

Properly
    applied, the principles of contract interpretation specify that a contact must
    be construed as a whole:
Sattva Capital Corp. v. Creston Moly Corp.
,

2014 SCC 53, [2014] 2 S.C.R.
    633, at paras. 63-64. The Ontario contract clearly allowed for withdrawal of
    consent. Indeed, it allowed for precisely what the Consent Regulations require.
    Accordingly, although I conclude that one cannot contract out of the ability to
    withdraw consent, this contract did not purport to do so.

CONCLUSION

[75]

I
    would grant the appeal and set aside the order below.

[76]

The
    appellant is not seeking costs of the appeal but reserves the right to seek his
    costs of the motion giving rise to the appeal. We have been provided with no
    information about the costs order that was made. If the parties are unable to
    agree on costs, the appellant should provide brief written submissions within
    14 days of release of this judgment. The respondent will have seven days to
    respond to those submissions.

Released: MF May 31, 2019


Fairburn J.A.

I agree. S.E. Pepall
    J.A.

I agree. C.W.
    Hourigan J.A.





Appendix A  Key Statutory Provisions and Regulations

Assisted Human Reproduction Act
, S.C. 2004,
    c. 2

Declaration

2
The
    Parliament of Canada recognizes and declares that



(d)
the
    principle of free and informed consent must be promoted and applied as a
    fundamental condition of the use of human reproductive technologies;



Definitions

3
The
    following definitions apply in this Act.



donor
means



(b)
in
    relation to an
in vitro
embryo, a donor as defined in the
    regulations.



Use of reproductive
    material without consent

8

(1)
No
    person shall make use of human reproductive material for the purpose of
    creating an embryo unless the donor of the material has given written consent,
    in accordance with the regulations, to its use for that purpose.

Posthumous use without consent

(2)
No
    person shall remove human reproductive material from a donors body after the
    donors death for the purpose of creating an embryo unless the donor of the
    material has given written consent, in accordance with the regulations, to its
    removal for that purpose.

Use of
in vitro
embryo without consent

(3)
No
    person shall make use of an
in vitro
embryo for any purpose
    unless the donor has given written consent, in accordance with the regulations,
    to its use for that purpose.



Offence
    and punishment

61
A
    person who contravenes any provision of this Act  other than any of sections 5
    to 7 and 9  or of the regulations or an order made under subsection 44(1) is
    guilty of an offence and

(a)
is
    liable, on conviction on indictment, to a fine not exceeding $250,000 or to
    imprisonment for a term not exceeding five years, or to both; or

(b)
is
    liable, on summary conviction, to a fine not exceeding $100,000 or to
    imprisonment for a term not exceeding two years, or to both.



Regulations of Governor
    in Council

65

(1)
The
    Governor in Council may make regulations for carrying into effect the purposes
    and provisions of this Act and, in particular, may make regulations

(a)
defining
donor
,
    in relation to an
in vitro
embryo;

(b)
for
    the purposes of section 8, respecting the giving of consent for the use of
    human reproductive material or an
in vitro
embryo or for the
    removal of human reproductive material;


Assisted Human Reproduction (Section 8 Consent)
    Regulations
, S.O.R./2007-137

Interpretation

1

(1)
The
    following definitions apply in these Regulations.



(2)
In
    these Regulations, the term
spouse
does not include a
    person who, at the relevant time, lives separate and apart from the person to
    whom they are married because of the breakdown of their marriage.



PART 3

Consent Given Under
    Subsection 8(3) of the Act

10

(1)
Subject
    to section 15, in this Part,
donor
means the following
    individual or individuals for whose reproductive use an
in vitro
embryo
    is created:

(a)
the
    individual who has no spouse or common-law partner at the time the
in
    vitro
embryo is created, regardless of the source of the human
    reproductive material used to create the embryo; or

(b)
subject
    to subsection (3), the couple who are spouses or common-law partners at the
    time the
in vitro
embryo is created, regardless of the source of
    the human reproductive material used to create the embryo.

(2)
If
    the donor is a couple, the consent of each spouse or common-law partner must be
    compatible in order for the consent of the donor to comply with the
    requirements of this Part.

(3)
In
    the case of an
in vitro
embryo created using human
    reproductive material from only one of the individuals in the couple that was
    the donor of the embryo at the time it was created, that individual becomes the
    donor of the embryo under paragraph (1)(a) if, before the use of the embryo,
    the individual is no longer a spouse or common-law partner in the couple.

11
This
    Part applies in respect of a consent given under subsection 8(3) of the Act to
    make use of an
in vitro
embryo.

12
Before
    a person makes use of an
in vitro
embryo, the person shall
    have a document signed by the donor of the embryo stating that, before
    consenting to the use of the embryo, the donor was informed in writing that

(a)
the
in
    vitro
embryo will be used in accordance with the donors consent for
    one or more of the following purposes, namely,

(i)
the donors own reproductive use,



(b)
if
    the donor wishes to withdraw their consent, the withdrawal must be in writing;
    and

(c)
the
    withdrawal is effective only if the person who intends to make use of the
in
    vitro
embryo is notified in writing of the withdrawal

(i)
in
    the case of an
in vitro
embryo to be used for the purpose
    mentioned in subparagraph (a)(i), before the use of the embryo,



13

(1)
Before
    a person makes use of an
in vitro
embryo, the person shall
    have the written consent of the donor of the embryo stating that the embryo may
    be used for one or more of the following purposes:

(a)
the
    donors own reproductive use;



14

(1)
If
    a donor wishes to withdraw their consent, the withdrawal must be in writing.

(2)
The
    withdrawal is effective only if the person who intends to make use of the
in
    vitro
embryo is notified in writing of the withdrawal

(a)
in
    the case of an
in vitro
embryo to be used for the purpose
    mentioned in paragraph 13(1)(a), before the use of the embryo;



(3)
If
    the donor is a couple, the consent of the donor may be withdrawn by either
    spouse or common-law partner.





[1]
See Shirley Darby Howell, The Frozen Embryo: Scholarly Theories, Case Law, and
    Proposed State Regulation (2013) 14:3 DePaul J. Health Care L. 407; Francesco
    Paolo Busardò et al, The Evolution of Legislation in the Field of Medically
    Assisted Reproduction and Embryo Stem Cell Research in European Union Members
    (2014) BioMed Res. Int.



[2]
See Appendix A for a complete catalogue.



[3]

Sections 5 to 7 were conceded to fall within a proper exercise
    of the federal governments s. 91(27) powers.



[4]
See also Assisted Human Reproduction and Informed Consent, Nov. 10, 2006,
    Library of Parliament, PRB 06-35E; Debates of the Senate, 2d Sess., 37th Part.,
    Vol. 140, Issue 94 (4 November 2003) (Hon. Wilbert J. Keon); House of Commons
    Standing Committee on Health,
Assisted Human Reproduction: Building Families
(Ottawa: Public Works and Government Services Canada, December 2001) (Chair:
    Bonnie Brown); Government of Canada statement on Withdrawal of Consent to
    Use, online: (2013) <
https://www.canada.ca/en/health-canada/services/drugs-health-products/biologics-radiopharmaceuticals-genetic-therapies/legislation-guidelines/assisted-human-reproduction/consent-human-reproductive-material-vitro-embryos.html
>.



[5]

On October 27, 2018, Canada Gazette, Part I, Volume 152,
    Number 43: Regulations Amending the Assisted Human Reproduction (Section 8
    Consent) Regulations provided notice of intent to amend the Consent Regulations,
    including to change the text of s. 10(2) to the following: If the donor is a
    couple, the
in vitro
embryo shall only be
used for the purposes to
    which both spouses or common-law partners have consented
(emphasis added).
    In my view, the meaning of this section remains unchanged on the proposed new
    wording. If anything, the proposed changes merely clarify the need for both
    individuals in a donor couple to agree upon the
same
use for an embryo.


