Legal Decision on Frozen Embryos: Malone v. Cappon


The recent case of Malone v. Cappon (2023 ONSC 5365) in the Ontario Superior Court of Justice addressed crucial issues of child and spousal support, as well as the fate of frozen embryos. In this blog post, we'll delve into the court's decision regarding the frozen embryos, shedding light on the complexities surrounding the parties' differing views and the legal framework applied.

The Frozen Embryo Dilemma:

The crux of the matter lies in the existence of frozen embryos held at CCRM Fertility, located in Boston, Massachusetts. Both parties had signed a contract with CCRM Fertility, which specified that consent from both parties or a court order is required before any action can be taken concerning the embryos.

The husband subsequently sought an order for the destruction of the frozen embryos, while the wife opposed this, citing moral and religious concerns. Instead, she proposed relocating the embryos to a cheaper facility for indefinite storage at her expense. Moreover, she expressed her wish to "have the embryos donated to a credible facility to assist another family in reproduction" once one or both of them died.

Jurisdictional Issues:

The court, presided over by Justice J. Audet, highlighted the jurisdictional challenge. The frozen embryos were stored in Boston, Massachusetts, and the detailed contract was governed by the laws of the State of Massachusetts, not the Canadian Assisted Human Reproduction Act. The court concluded that it lacked jurisdiction to make an order concerning embryos located outside of Canada. This means that the parties will have to litigate the matter in Massachusetts if they cannot reach an agreement.


In Canada, the Assisted Human Reproduction Act governs what can be done with surplus embryos when couples no longer wish to have any more children. Embryos may be discarded, as the husband in this case wanted. They can also be given to a clinic to improve assisted reproduction procedures or donated to another person or couple to have a child of their own. When creating embryos, most people will be asked what can be done in the future with those embryos. Fertility clinics typically want instructions in the event the couples separate, or one or both of them die. It can be a difficult decision to make even when a couple is happy and planning their future together. And it can be emotionally devasting when the parties no longer agree on how to dispose of those embryos. This case teaches us that courts in Canada may decline to get involved if the embryos are stored in another jurisdiction and there is a contract referring to that particular jurisdiction expressly dealing with those embryos.

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