Even if the death is sudden or unexpected, informed consent in writing is still required
No matter how sudden or unexpected the death, a widowed wife cannot remove sperm from her deceased husband’s body to create an embryo, unless she has his informed consent in writing.
In L.T. v. D.T. Estate (Re), 2019 BCSC 2130, decided Dec. 9, Ms. T sought to retrieve sperm for reproductive use from Mr. T’s body after his death. When the fertility centre told her of a 36-hour deadline and the need for a court order, she filed an urgent, after-hours application with the Supreme Court of British Columbia.
Justice David Masuhara issued an order permitting her to retrieve such material, which would be stored at a fertility centre pending a full hearing on the facts of the case.
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The issue of the case pertained to the statutory interpretation of s. 8(2) of the Assisted Human Reproduction Act, S.C. 2004, c. 2, which states 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 of the material has given written consent, in accordance with the regulations, to its removal for that purpose.”
Having been married for three years before Mr. T’s sudden and unexpected death, Ms. T asserted that, despite the absence of a written statement signifying that her husband had consented to the removal of his sperm for reproductive use, he had enjoyed being a parent, and had expressed a desire for more children before his untimely demise. This claim was backed by other people close to Mr. T.
Because consent had not been clearly defined under the AHRA, common law conceptions of consent, which contemplate implied consent, oral consent and third-party consent, should be considered, argued Ms. T.
However, “legislation remains paramount over the common law,” Masuhara said. The plain language of the law requires not just consent, but written and informed consent.
The petitioner then cited K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621, in which case the court permitted the release of stored reproductive material despite the lack of written consent from the deceased donor.
Masuhara said that the factual circumstances there were different because, in that case, while the donor had not provided written consent, he did have his sperm stored and preserved during his lifetime for its reproductive use after his death. He had expressly communicated this fact to his partner, to a social worker, to medical professionals and to the fertility centre.
The petitioner then argued that the AHRA contained a legislative gap, which the court may now fill.
Masuhara disagreed, saying, “As I read it though, section 8(2), covers all posthumous removals of a donor’s reproductive material after death.” He said that nothing in the phrasing of the law called for the addition of an exception in the case of a sudden and unexpected death.
“I find it extremely unlikely that the legislature only considered the need for posthumous consent for persons who desired to have children and who contemplated or anticipated their death, as opposed to persons where death is sudden,” he added.
Masuhara also disagreed with the petitioner’s assertion that she had a property right over the stored sperm, particularly because the sperm had been removed and stored under the supervision of the court, by his order.
“Under present legislative circumstances, our policy makers require an individual to formalize their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material,” Masuhara concluded. “Regrettably, that is not the case here.”
He therefore dismissed the petition and terminated the order authorizing the removal and storage of Mr. T’s sperm.
