Canadian Journal of Family Law

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In July 2018, the Ontario Superior Court, in S.H. v D.H., dealt with a dispute between a recently separated couple over a frozen embryo that the couple had created. In his judgment, Justice Del Frate stated that the embryo should be conceived of as property. This was the cause of uproar among feminist legal scholars who were concerned with the possible repercussions for cisgender women of labeling embryos as property. The Superior Court decision was subsequently overturned by the Ontario Court of Appeal this past May (2019). However, given the likelihood that embryos will be treated as property in future disputes, it is important to assess what the ramifications of this type of categorization might be.

In this paper, I employ a feminist relational analysis in order to analyze the implications that categorizing embryos as property might have for three relationships involving cisgender women. I identify these relationships to be: (1) the relationship between cisgendered heterosexual intended parents, (2) the relationship between intended mothers, the embryo, and society, and (3) the relationship between intended parent(s) and an egg donor and/or surrogate. Ultimately, I find that categorizing embryos as property adds to an alarming power imbalance between cisgendered heterosexual intended parents when they are separating and trying to make decisions about what to do with frozen embryos. Secondly, I argue that there are compelling reasons that categorizing embryos as property could perpetuate the idea that cisgender women’s bodies are ownable, and that egg donors’ and surrogates’ bodies are commodities. These are views that could have the effect of perpetuating the long-term oppression and disempowerment of cisgender women. If the trend towards treating embryos as property continues to grow, a feminist reconceptualization of property, such as that proposed by Rosalind Pollack Petchesky would be an important, albeit slow, step to alter notions that cisgender women can be owned or commoditized.