Fertility LawEmbryo Donation

Embryo Donation in Canada

Embryo donation is a profound decision that intertwines the complexities of biology, emotion and law. As science advances and offers more opportunities for couples to conceive, new questions arise about the ethical and legal dimensions of these processes. Embryo donation, in particular, has become a beacon of hope for many families struggling with infertility. 

What is an embryo?

An embryo is an early stage of human development that begins just after fertilization (when egg and sperm unite) and continues through the formation of critical body structures such as organs and tissues. A developing human organism is usually referred to as an embryo until the ninth week after conception when it is called a fetus.

Reasons people donate embryos

After going through in vitro fertilization (IVF) treatment, a couple may have leftover embryos that are cryopreserved (frozen and stored) which can be used for further IVF treatments. If the couple no longer requires the unused embryos, they can be donated to help others struggling with infertility to start a family of their own.

Is embryo donation legal in Canada?

While embryo donation is legal in Canada, it is illegal to buy and sell embryos according to the Assisted Human Reproduction Act.

Can you pay for embryos?

No. It is illegal in Canada to purchase, offer to purchase or advertise for the purchase of an in vitro embryo. The Assisted Human Reproduction Act also strictly prohibits the sale of an in vitro embryo, including offering or advertising for sale.

Embryo donation agreements

The embryo donation agreement is a legal agreement between embryo donor(s) (the person or couple who created the embryos through IVF) and the embryo recipient(s) (the “intended parent” or “intended parents” of the child).

The agreement sets out the intentions of the donor(s) and the individual or couple with respect to any children born from the donated embryos. This includes parentage and guardianship rights, any future contact between the embryo donors and the child, financial support of the child, medical disclosure, confidentiality, use of any excess embryos, and other issues.

Given that the donors’ and recipients’ children will be genetic siblings, the agreement contains language regarding disclosure obligations in this regard.

Why do I need an embryo donation agreement?

Embryo donation is a beautiful gift to a family struggling with infertility. However, it involves considerable legal implications. It is very important that the donor or donors and the couple or individual receiving the embryos have a written agreement in place prior to the transfer of any embryos, and that each party to the agreement obtain independent legal advice from a lawyer specializing in fertility law. In fact, fertility clinics in Canada require that such an agreement be in place before they will execute the physical transfer of the embryos.

The embryo donation agreement contains strong language that the embryo donors are not the parents of the child, that they will have no guardianship or decision-making authority, and no rights to seek parenting time with the child (although there can be flexibility in this regard, if the parties desire). The agreement also protects the embryo donors from having any obligations to financially support the child by preventing the embryo recipients from seeking financial contributions such as child support. The agreement also contains a medical waiver in which the embryo recipients assume the risk that the child(ren) may be born with abnormalities or medical problems, and that a viable embryo and pregnancy cannot be guaranteed.

These agreements are often customized to reflect the parties’ specific wishes and relationship with each other, as well as to account for changes in the rapidly evolving area of fertility law