Judge rules B.C. woman’s frozen embryos won’t be destroyed until 2013 divorce trial

An estranged B.C. couple's battle over a handful of frozen embryos could break some fresh legal ground in Canada.

Juanita and Gregory Nott separated in 2011 and are in the midst of divorcing. But in the middle of the process they learned the B.C. Women's Centre for Reproductive Health, where the couple have four embryos in storage since 2004, was closing down.

Juanita Nott, who had two children with her husband born from implanted embryos, along with two others, wanted the embryos transferred to another facility for possible future use. Gregory Nott, concerned he could be saddled with child-support payments down the road, refused his consent and wanted the embryos destroyed.

But a B.C. Supreme Court judge sided with Juanita Nott, ruling Wednesday that the embryos could be transferred and preserved at least until the issue of custody is decided in the divorce proceeding, the Vancouver Province reported.

[Related: Demise of federal assisted reproduction watchdog leaves industry in limbo ]

Justice Nathan Smith said he did not have to address the question of what will happen eventually to the embryos.

"I'm just very pleased with the outcome today," Juanita Nott, 43, said outside court, according to the Province. "We've got a chance to save [the embryos] until it can be dealt with at trial. That's really what we wanted to achieve today."

Juanita Nott, who lives in Nanoose Bay, on Vancouver Island, said she wants to have more children.

"I want the embryos. I want to use the embryos. This is my last chance."

Gregory Nott, who lives in the Vancouver suburb of Coquitlam, would not comment on the ruling but his lawyer told the Province the decision was not unexpected.

"My client is not overly concerned with it and his focus remains on his two children," Karol Wince said.

His wife's lawyer, Lorne MacLean, said the Nott's divorce case has wider implications because it's the first time a Canadian court will decide on how to deal with frozen embryos when there's a disagreement between the two parties.

"There are sound arguments to be made on both sides of the issue," McLean told the Province.

"The issue is going to be sorted out in June. Our goal was to preserve these embryos so that we would be able to make the arguments on behalf of our client."

Discussing the decision on the MacLean Family Law Group's web site, he explained that frozen embryos "occupy a hybrid category between property and life as they are 'potential persons in waiting.' "

"Approaches in other jurisdictions have included a right-to-life approach, an approach giving pre-embryos the status of property that focuses upon the rights of the donors and the third 'special respect' approach which take into account that pre-embryos occupy an interim position between property and a person, given their life potential and that special respect should be given that involves a balancing test that takes into account the rights of all parties," MacLean argued before Smith.

[ Related: 'Super-fertility' offers clues to why some women have multiple miscarriages ]

The ruling comes as revisions to B.C.'s Family Law Act are set to come into force that will change the definition of who is a parent in cases of assisted reproduction, MacLean added.

The divorce trial itself, set for next June, will look at several issues, including the validity of consent forms and whether they should control important decisions regarding embryonic unborn life, balancing the right to procreate with the right not to do so, and whether embryos can be used by the mother, stay frozen or be destroyed, he said on his web site.

On a wider perspective, MacLean said the case will also raise constitutional questions under Section 7 of the Charter of Rights and Freedoms protecting the right to life, liberty and security of the person. He plans to use Section 7 to challenge the constitutionality of a section of the federal Assisted Human Reproduction Act dealing with consent.

The advance of reproductive technology has forced countries to deal with the legal consequences of preserving embryos. The Wall Street Journal, in an article last year, noted the U.S. legal system hasn't established clear standards on how to deal with embryos of a divorced couple.