Canada: Sheila Morris' Estates Article "Death, Consent And Human Reproductive Material" Published In Lawyer's Daily

Wills and Estate litigation lawyer Sheila Morris' article “Death, consent and human reproductive material” was published by The Lawyer’s Daily on the recent case of L.T. v. The Estate of D.T. 2019 BCSC 2130, where the Supreme Court of British Columbia ruled that a woman (Mrs. T) could not remove and store the sperm of her husband (Mr. T), who died suddenly and without a will, in order to create an embryo for reproductive use. 

The article was published on December 18, 2019. To read the article, visit: https://www.thelawyersdaily.ca/articles/17223.

Death, consent and human reproductive material 

In the recent case of L.T. v. The Estate of D.T. 2019 BCSC 2130, the Supreme Court of British Columbia ruled that a woman (Mrs. T) could not remove and store the sperm of her husband (Mr. T), who died suddenly and without a will, in order to create an embryo for reproductive use. The court considered novel arguments with respect to statutory interpretation and consent, as well as the critical need for clear and explicit planning with respect to genetic material.

Mr. and Mrs. T had been married for three years and had very recently become parents. According to Mrs. T, they always planned to have more. However, Mr. T died suddenly on Oct. 2, 2018 without having made a will, and without having made any plan for his genetic material. One day after his sudden death, Mrs. T contacted a fertility centre to inquire about retrieving her deceased husband’s sperm. The fertility centre told her that the retrieval should occur within 36 hours of death, and that such a retrieval was only possible with a court order. Mrs. T brought an urgent application for such an order.

Because of the 36-hour deadline, Justice David Masuhara authorized the removal of Mr. T’s sperm, ordered that it be stored at a fertility centre, and ordered a further hearing to allow Mrs. T to make full submissions on the operation of the legislation.

At the hearing, Justice Masuhara referred to the Assisted Human Reproduction Act, S.C. 2004, c.2 (AHRA), which specifically prohibits the removal of human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, unless the donor has given written consent, in accordance with the regulations, to its removal for that purpose. Consent in accordance with the regulations requires a signed document confirming the donor’s intent to create an embryo for (among other purposes) their spouse or common-law partner, and that the spouse or common-law partner cannot use the donor’s reproductive material unless they have the donor’s written consent.

Justice Masuhara considered Mrs. T’s submissions on statutory interpretation with respect to the question of consent, and her argument about a “legislative gap,” in which there is no law governing this specific situation. Mrs. T argued that the donor has clearly indicated their desire to have children with their spouse; the donor’s spouse seeks to retrieve the reproductive material for the sole purpose of creating an embryo; the donor died in sudden and unexpected circumstances; and, the donor did not provide written consent. Mrs. T also argued that the sperm was her property.

The court considered the 2016 British Columbia case of K.L.W. v. Genesis Fertility Centre [2016] B.C.J. No. 2364, which found that the donor had provided the requisite consent to the reproductive use of his stored reproductive material, despite not having provided the “written consent” required under the AHRA. However, the deceased donor’s reproductive material in that case was removed during his lifetime, with his consent. Indeed, the entire purpose of removing and storing his reproductive material was to preserve it for later use by his partner.

It is clear that Justice Masuhara was sympathetic to Mrs. T, and found there was “no question” that Mr. T looked forward to having more children, and for his daughter to have siblings. However, he also found that Mr. T clearly did not provide for the posthumous use of his reproductive material in accordance with the “plain statutory language” of the legislation. The judge stated that “like most other young couples, they had not put their minds to that circumstance”. Ultimately, Justice Masuhara dismissed Mrs. T’s petition, a decision he admitted was “unfortunate,” and stayed the order to destroy Mr. T’s sperm for 30 days to permit her to appeal, if she so desires.

The case is instructive for individuals, as it is yet another reminder of the need to not only make a will, but to make a comprehensive estate plan. Likewise, it is instructive for lawyers, for whom it should be protocol to canvass the issue of human reproductive material, and include it in their client’s plans.

Re-printed with permission from  The Lawyer's Daily - originally published on December 18, 2019.

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