In Canada, section 2 of the Assisted Human Reproduction Act sets out that “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 has given written consent”. In considering cases under section 2, the Supreme Court of Canada has made it clear that the ability of an individual, either living or deceased, to control the use of their reproductive material is of fundamental importance as it relates to human autonomy.
In the recent case of L.T. v. D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court had to consider the proper application of section 2 in difficult circumstances. A young couple had been a long-term relationship for several years before marrying and having their first child together. Sadly, the husband passed away suddenly and unexpectedly 3 years into their marriage. After his death, the wife requested that a fertility clinic retrieve his sperm for future use. In the absence of a clear directive from the decreased, the fertility clinic required a court order before extracting the sperm. The wife then applied to the court for such an order.
Given the urgency of the matter and application, the Court ordered that the reproductive material be harvested and stored by the fertility clinic in order to give the parties time to present evidence and make detailed submissions.
At that hearing, the Court heard testimony from the deceased’s wife, several family members, and close friends each of whom testified that the deceased wanted to have more children; did not want his daughter to be an only child; and took great joy in being a parent. There was no evidence that the deceased would not have wanted his reproductive material to be used after his death. Frankly, he and his wife had not considered it at any time before he died and the court accepted that young couples do not commonly turn their minds to such matters. In summation, the wife asked the Court to consider the entirety of the situation when considering consent and allow the reproductive material to be maintained for future use by her.
Although the Court was highly sympathetic and agreed that the deceased wished to have more children prior to his death, the law clearly prohibited the use of his reproductive material without clear written consent and that consent could not be inferred from prior statements of the deceased on the general topic of having more children. The Court ruled that the deceased’s reproductive material was to be destroyed within 30 days of his order to allow the wife the opportunity to consider an appeal.