How is Frozen Reproductive Material Treated in Family Law Agreements in British Columbia?

If you and your partner are preparing a family law agreement, you may be wondering whether frozen reproductive materials can be included as property.  Frozen reproductive material refers to eggs, sperm, or embryos that have been preserved through freezing (cryopreservation) for future use in fertility treatment, family planning, or assisted reproduction. This is a sensitive and complex area of law that touches on both provincial family property rules and federal laws regulating assisted reproduction.

This post will explore how frozen reproductive materials are treated under the Family Law Act (BC), [1] how the Assisted Human Reproduction Act (Canada) [2] affects these agreements, and how courts across Canada have handled disputes involving frozen reproductive materials. We will also look at what you can and cannot include in a family law agreement if frozen reproductive materials are involved.

Are frozen reproductive materials considered property in BC?

Under section 84 of the Family Law Act (the “FLA”), family property typically includes assets like real estate, pensions, investments, and bank accounts. This section sets out a broad definition of “family property,” but it does not specifically include frozen reproductive materials. [3]

To date, BC courts have generally not treated frozen reproductive materials as divisible family property in the same way as financial or physical assets. That means frozen reproductive materials will not automatically fall into the pool of assets that must be split between spouses on separation.

However, section 92 of the FLA gives spouses flexibility to make their own agreements about property division. [4] This means that, in theory, a couple could include terms about frozen reproductive materials in their agreement. But here’s the catch: any such terms are limited by federal law.

The Assisted Human Reproduction Act and consent

The Assisted Human Reproduction Act (the “AHRA”) is a federal statute that governs the use, storage, and control of reproductive materials.

Section 8(1) of the AHRA says that no person shall make use of human reproductive materials 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. [5]

Consent can be withdrawn at any time before reproductive material is used.

This means that even if a family law agreement says one partner will have “ownership” of the frozen reproductive material, those terms cannot override the AHRA. Both donors must still provide current, written consent before any use or disposal of frozen reproductive materials.

In practice, this makes it extremely difficult to treat frozen reproductive materials as if they were ordinary property. The consent-based framework overrides private agreements, no matter how detailed they are.

What do the courts say about frozen reproductive materials?

Canadian courts have considered disputes involving frozen reproductive materials in several important cases. These decisions illustrate the tension between treating frozen reproductive materials as property and respecting the consent requirements of the AHRA.

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

This Ontario Court of Appeal case is one of the leading Canadian decisions on the issue. [6]

• Facts: The couple had purchased a donated embryo from a clinic in the United States. Neither spouse was genetically related to the embryo. They signed contracts in Ontario and Georgia that referred to the embryo as property. The Ontario contract gave the wife (D.H.) control over the embryo if the couple separated.

• Trial decision: The trial judge treated the embryo as property and gave control to D.H. under the Ontario contract. The husband (S.H.) was ordered to be reimbursed for half the cost of the embryo.

• Court of Appeal: The Ontario Court of Appeal overturned this decision. The court emphasized that embryos are not ordinary property, and that the AHRA’s consent model is determinative. Because S.H. withdrew his consent, D.H. could not use the embryo, regardless of what the contract said.

This case underscores that consent always trumps contractual terms. Even a detailed agreement cannot give one partner unilateral control over frozen reproductive materials if the other partner no longer consents.

J.C.M. v. A.N.A., 2012 BCSC 584

This British Columbia Supreme Court decision involved a same-sex couple who, during their spousal relationship, each gave birth to one child using therapeutic insemination with sperm from a single anonymous donor. [7] After separating, they disagreed about what should happen to the remaining unused materials.

• Facts:  The parties separated and entered into a separation agreement that divided their joint property, but the agreement did not address thirteen remaining donor sperm “straws” stored at a fertility clinic. [8] One party later sought to use the remaining sperm to conceive another child with a new partner, while the other opposed this and asked that the sperm be destroyed. [9]

• Issue: Could the remaining donor sperm straws be divided like property?

• Decision: The court concluded that reproductive materials occupy a unique category. They could not be treated as simple marital property, but the court also acknowledged the importance of the parties’ agreements with the fertility clinic. Ultimately, the court ordered that the materials be divided, but its reasoning left open the broader legal question of whether reproductive materials are truly “property.” [10]

This decision shows that BC courts are willing to consider frozen reproductive materials within the context of family agreements but remain reluctant to label them as traditional property.

Lam v. University of British Columbia, 2015 BCCA 2

Although this is not a family law case, this decision provides helpful context. It involved a dispute over stored sperm samples and whether they could be treated as property. [11]

The court recognized that reproductive material can sometimes be considered property for specific purposes (such as storage or contractual rights) but again emphasized that consent and public policy concerns limit any “ownership” rights.

What does this mean for family law agreements?

While frozen reproductive material is not clearly classified as divisible property under the FLA, its legal status remains uncertain. Despite this uncertainty, it is often both practical and advisable for couples to address frozen reproductive material directly in a family law agreement, as doing so helps clarify intentions and reduce the risk of future disputes.

Thoughtful and potentially enforceable agreement provisions may include:

• Stating intentions about whether reproductive materials should be used, donated, or destroyed in the future.

• Waiving claims to each other’s stored reproductive material.

• Allocating costs for storage and preservation.

• Providing dispute resolution mechanisms, such as mediation or arbitration, in the event of disagreement.

Importantly, any such provisions must be drafted with the understanding that consent can be withdrawn at any time. Even where an agreement exists, a spouse cannot be compelled to proceed with the use of frozen reproductive material if they later revoke their consent.

Public policy considerations

Courts are also cautious because treating frozen reproductive materials as property raises significant ethical and public policy issues. Unlike dividing a bank account, decisions about frozen reproductive materials involve potential future children. Canadian law emphasizes autonomy and consent in reproductive decisions, and agreements that try to assign “ownership” of frozen reproductive materials may be struck down as contrary to public policy.

Why is this important?

For many couples, frozen reproductive materials are more than just medical material — they represent future possibilities for building a family. Because of this, disagreements about frozen reproductive materials can become some of the most emotionally charged and legally complicated disputes during separation.

Here are a few reasons why addressing frozen reproductive materials in your family law agreement is important:

Clarity reduces conflict. Talking about reproductive materials ahead of time helps avoid painful disputes later. Even if the law requires ongoing consent, an agreement can still reflect each partner’s wishes and expectations.

• Costs can add up. Reproductive materials must be stored, often for years, at fertility clinics. Deciding who is responsible for ongoing storage fees can prevent future financial disputes.

• Consent can change. Life circumstances shift after separation. By setting out a plan in advance, couples can better prepare for the possibility that one partner may later withdraw consent.

• Courts look at intentions. While the courts do not enforce property-style “ownership” of reproductive materials, they do consider the parties’ intentions and agreements when resolving disputes. Having your wishes documented can carry weight in a legal proceeding.

• Emotional protection. Addressing reproductive materials directly can help both parties feel respected and give them a sense of closure, even if the reproductive materials are never used.

In short, even though frozen reproductive materials are not treated as divisible property, ignoring them in a family law agreement can leave a major gap. Taking the time to set out preferences and responsibilities helps protect both partners legally, financially, and emotionally.

Key takeaways

• Frozen reproductive materials are not treated as family property under the Family Law Act in BC.

• The Assisted Human Reproduction Act requires ongoing consent for the use of reproductive materials, and that consent can be withdrawn at any time.

• Courts across Canada have consistently prioritized consent over contracts, even where agreements treated reproductive materials as property.

• Agreements can still address frozen reproductive materials, but only in ways that respect the consent-based framework.

Final thoughts

If you are considering including frozen reproductive materials in a family law agreement, it is important to proceed with care. Agreements can help clarify intentions and responsibilities, but they cannot override federal consent laws.
Reproductive material-related provisions are a complex and personal area of family law. To ensure your agreement is enforceable and aligned with your wishes, contact a lawyer here or choose someone from our team.

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[1] Family Law Act, SBC 2011, c 25, s 84.

[2] Assisted Human Reproduction Act, SC 2004, c 2.

[3] Supra note 1, s 84.

[4] Ibid, s 92.

[5] Supra note 2, s 8.

[6] S.H. v. D.H., 2019 ONCA 454 at paras 1–4, 66–72.

[7] J.C.M. v A.N.A., 2012 BCSC 584 at paras 3–4.

[8] Ibid at paras 6–9.

[9] Ibid at paras 1, 11–12.

[10] Ibid at paras 55, 75, 96.

[11] Lam v. University of British Columbia, 2015 BCCA 2 at paras 73–86, 106–110.