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Consent and the use of Human Reproductive Material after Death

Dec 11, 2019

By Sheila Morris - Wills and Estates Litigation

Needle injected into cellIn 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, to create an embryo for reproductive use. The Court considered novel arguments on statutory interpretation and consent, as well as the critical need for clear and explicit planning for 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 October 2, 2018, without having made a will, and without having made any plan for his genetic material. One day after Mr. T’s sudden death, Mrs. T contacted a fertility centre to inquire about retrieving her deceased husband’s sperm. The fertility centre told Mrs. T 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, the Honourable Justice 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, His Honour referred to the Assisted Human Reproduction Act, S.C. 2004, c.2 (the “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.

His Honour considered Mrs. T’s submissions on statutory interpretation for the question of consent, and Mrs. T’s argument about a “legislative gap,” in which there is no law governing this specific situation. Mrs. T argued that the donor clearly indicated their desire to have children with their spouse; Mrs. T wanted 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.

Justice Masuhara was clearly 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, His Honour 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. His Honour stated that “like most other young couples, they had not put their minds to that circumstance.” Ultimately, His Honour 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 Mrs. T to appeal, if she so desires.  

What this decision underscores is the need for couples to provide for their reproductive material as early as possible. For more information on estate planning and genetic material, read my recent article “Make a Will Month: Storing Cord Blood or Embryos? Don’t forget Estate Planning.” and for more information on life events that can impact your estate, read my article “Love and Marriage – 5 Critical Events That Can Impact Your Estate.”

Image: Sheila Morris, Wills and Estates LawyerIf you have any questions or would like information on estate planning, litigation, or disputes, contact estates litigator Sheila Morris at