Surviving spouse loses fight to use reproductive material taken from deceased husband due to lack of consent.  

In L.T. v D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court dealt with a difficult and challenging application advanced by a surviving spouse for the right to use her deceased husband’s sperm for the purposes of future reproductive use.

The deceased, referred to in the decision simply as Mr. T, died suddenly on October 2, 2018. At the date of his death, the deceased and his wife had been married for three years and the two had recently become parents. It was known to all those who knew the couple that they wanted more children.

The day after her husband’s death, the deceased’s wife contacted a fertility clinic about retrieving her husband’s sperm for future reproductive use and was told that a retrieval of this kind should occur within 36 hours of death and that a court order was required. On hearing an emergency application, the court authorized the removal of the husband’s sperm but ordered that it could not be released, distributed, or used until further order of the court.  A further hearing was ordered to address the underlying legal issues.

The decision ultimately rested on the Court’s interpretation of certain provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “AHRA”) and its regulations the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”).

Section 8(2) of the AHRA provides:

Posthumous use without consent

(2) No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The deceased died without a Will and had not provided written consent to the posthumous removal of his reproductive material for the purpose of creating an embryo.

The spouse argued that the court should adopt a broad-based common law and statutory understanding of the term “consent” when interpreting the relevant provisions of the AHRA. However, the Court stated that it could not rely upon the common law where it directly contradicts, or is qualified by, the clear and unequivocal legislative language before it.  The language of section 8 of the AHRA is clear. It requires the donor to provide written consent.

Furthermore, the Regulations required the consent to be informed, such that the donor knew that (a) their reproductive material would be posthumously removed and (b) that their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner.

The surviving spouse also argued that there was a legislative gap in the AHRA in that the legislation did not contemplate, or provide for, the type and form of consent that should be required of a donor where the donor has died in sudden and unexpected circumstances, but has previously clearly indicated through their words and actions, while living, their desire to have children with their spouse. 

The court concluded that section 8(2) of the legislation covered all posthumous removals of a donor’s reproductive material after death and that there was no legislative gap. The court stated that while in rare and limited circumstances, it may address and provide a solution for situations unanticipated by the legislature at the time of enactment, that was not the case here as the wording of section 8(2) explicitly requires written consent from a donor. There was nothing to suggest that the absence of a provision dealing with a sudden and unexpected death of a donor was a legislative oversight.

Finally, the surviving spouse argued that the sperm removed and stored was property which vested in her. The Court rejected this argument as well stating that the posthumous order authorizing removal and storage for the specific purpose of permitting the parties to make further submissions in this case could not be seen as providing a property interest for the surviving spouse.  The reproductive material was held under the supervision of the court and did not vest a property interest to anyone.

Although sympathetic to the surviving spouse, given the clear legislative requirement of written and informed consent by the donor, the Court was unable to grant the spouse’s request to use the reproductive material to create an embryo at a later date.

This case highlights the importance of ensuring that you have an updated Will and other estate planning documents in place, no matter what your age. Advances in technology, particularly reproductive technology, are creating new opportunities for couples to have children, later in life and even after the death. Any couple that may be contemplating having children, whether now or in the future, should review the provisions of the AHRA and the Regulations and take the proper steps to ensure that their wishes are honoured after death.