A Cautionary Tale of Consent: Widow denied use of deceased husband’s reproductive material

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In the decision of LT v DT Estate, 2019 BCSC 2130, the Supreme Court of British Columbia considered whether a wife could extract and use her recently deceased husband’s reproductive material to create embryos without his prior written consent.

Ms. T and Mr. T were a young couple who had been married for three years and had recently become parents. Sadly, Mr. T died suddenly and unexpectedly. He did not have a will.

Immediately after Mr. T’s death, Ms. T made an urgent application to the court for an order that Mr. T’s sperm be extracted from his body, stored, and used to create embryos for Ms. T’s reproductive use. There was significant evidence that Mr. T had enjoyed being a parent and wanted more children. Recognizing that the extraction needed to occur within 36 hours of his death, the court ordered that the material be extracted and stored pending a full hearing.

The main issue to be addressed at the full hearing was whether posthumous extraction and use were permitted despite the fact that Mr. T had not consented to either in accordance with the Assisted Human Reproduction Act (the “AHRA”) and regulations.

The AHRA and regulations state that a person cannot extract reproductive material from a donor’s body after death for the purpose of creating an embryo without the donor’s prior written consent. Moreover, the donor must have been made aware of certain information prior to giving consent, including the purpose for which their reproductive material would be extracted and their ability to withdraw consent.

At the full hearing, Ms. T made three arguments in favor of her gaining access to and use of the reproductive material.

The first argument was that Mr. T’s implied consent was sufficient to fulfill the AHRA requirements. Ms. T pointed to the common-law concept of consent, which permits consent to be implied and oral. She also relied on provincial health legislation, which allows consent to medical treatment to be inferred in some cases.

The court rejected this argument on the grounds that the AHRA unequivocally requires written and informed consent. It reasoned that the broad-based common law understanding of consent could not be applied in the face of legislative language to the contrary. Similarly, provincial health legislation could not assist in interpreting a federal statute explicitly requiring written consent.

The second argument was that a “legislative gap” existed because the AHRA did not contemplate the unexpected death of a potential donor.

The court rejected the existence of a legislative gap. It found no evidence that the legislature had intended to exempt individuals from the consent requirements in cases of unexpected death. Rather, it appeared that the legislature had intended for the AHRA requirements to apply to all instances of posthumous extraction. This was particularly true, in the court’s view, because the vast majority of individuals using assisted reproduction would be of an age at which death is generally unexpected.

The third argument was that Ms. T had property rights in Mr. T’s extracted sperm as his intestate heir.

The court rejected this final argument as well. It reasoned that Mr. T’s sperm could only arguably be considered property because it had been extracted and stored as a result of the court’s interim order. As the order had only been made pending submissions on the main issue, it could not be interpreted as vesting a property interest in Ms. T.

Throughout the decision, the court distinguished the matter at hand from KLW v Genesis Fertility Centre, 2016 BCSC 1621. In Genesis Fertility, the court found that the deceased donor had provided sufficient consent for the posthumous use of his reproductive material even though he had not consented in writing. Unlike Mr. T, however, the donor in Genesis Fertility had consented to the extraction and storage of the reproductive material during his lifetime. Moreover, he had expressed to several people that he wanted his wife to have use of the reproductive material after his death. Therefore, the “extraordinary circumstances” that had been present in Genesis Fertility were not present in this case.

The court dismissed the petition and terminated the authorization for the storage of Mr. T’s reproductive material. However, the court stayed its order for 30 days to allow Ms. T to file an appeal. Ms. T filed an appeal in January 2020, the result of which is yet to be determined.

If you have any questions about the AHRA or incorporating assisted reproduction into your estate plan, a member of our Wills + Estates team would be happy to assist you.

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