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Canadian woman refused right to use deceased husband’s sperm

Tuesday, 7 January, 2020

The Supreme Court of British Columbia has ruled that a woman cannot be granted her deceased husband’s stored sperm for future reproductive use, because explicit written consent was not given before the husband died intestate (LT v DT Estate (Re), 2019 BCSC 2130).

The husband, DT, died suddenly in October 2018. He and his wife, LT, had recently become parents, and were planning to have more children in the future. The day after DT’s death, LT went to a fertility centre to request that they retrieve her husband’s sperm for future reproductive use. The clinic informed her that this retrieval had to occur within 36 hours of death, and only under a court order.

Following an emergency application, the Court authorised the removal of the sperm, but added that it “could not be released, distributed, or used until further order of the Court.”

Subsequently, the Court reviewed the underlying legal issues surrounding the fact that DT had died intestate and with no explicit expression of wishes, while also taking into account the fact that “there is no question that he [DT] looked forward to parenting and having more children and for his daughter to have siblings.”

The Court examined the case in light of the Assisted Human Reproduction Act 2004 (AHRA) and the Assisted Human Reproduction (Section 8 Consent) Regulations. Under the AHRA, posthumous use of a donor’s reproductive material for the creation of an embryo can be granted only with explicit written consent from said donor. Further, the Court found “there was no prior discussion of the use of DT’s sperm posthumously nor prior informed consent by the deceased for the removal of his sperm.”

LT argued that the AHRA does not allow for a sudden and unexpected death, leaving a legislative gap; however, the Court found the wording of the Act to be conclusive.

Mr Justice Masuhara therefore ruled that the sperm could not be used, saying: “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. Regrettably, that is not the case here.”