Vancouver Calgary Assisted Reproduction Dispute Lawyers handle disputed frozen sperm, egg, and embryo cases across Western Canada. Cases involving accidents involving the thawing and destruction of frozen human reproductive material have confirmed this material is “property”. What happens to sperm if one spouse dies? Two recent cases came to different results.
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The BC Court of Appeal just upheld a trial judgment finding a dead man’s sperm could not be used by his wife even though the deceased would have consented to the posthumous use of his reproductive material if he had considered the issue. However, granting the widow permission to use her husband’s sperm would be contrary to the explicit language found within the act – set to protect the donor’s interest, they ruled. Additionally “Parliament has enacted a criminal prohibition on the posthumous use of a donor’s reproductive material unless the donor had given prior, informed, written consent to its removal and use for that purpose.”
Justice Harris speaking for the BC Appeal Court held:
“I do so with regret, aware of the painful and tragic circumstances confronting Ms. T’s family,”
“Given the circumstances, I would stay the order of this court for 60 days to permit the parties to consider their position on an appeal to the Supreme Court of Canada.”
Contracts are signed with the reproductive material storage facilities that often have some draconian terms. Our federal legislation requires the consent of the person “owning” the reproductive material, in the case of an egg or sperm, and BOTH parties consent concerning frozen embryos before the material can be used.
Our Vancouver Calgary Assisted Reproduction Dispute Lawyers have offices in Vancouver, Calgary, Kelowna, Surrey, Fort St John, and Richmond in BC, and Toronto. Call us toll-free at 1-877-602-9900.
Vancouver Calgary Assisted Reproduction Lawyers know that when written consent isn’t obtained promptly, problems can arise when someone dies or becomes incapacitated before they can consent.
There are not a lot of these cases in this rapidly developing area of law to guide Vancouver Calgary Assisted Reproduction Lawyers. We look forward to being key support for clients entering uncharted legal waters.
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Founder, Lorne N. MacLean, QC handles high stakes frozen stored human reproductive material disagreements through negotiation, arbitration or court applications and trials.
Here is what the trial judge BC judge did in the case of K.L.W. when a deceased spouse’s sperm was not being released by the fertility clinic to his wife storing it after death where the court held the wife could have the use of her deceased husband’s sperm.
[3] Throughout his life, [A.B.] struggled with [content redacted]. The petitioner and [A.B.] shared an intense desire to have a family. However, [A.B.] suffered from a succession of severe medical conditions related to [content redacted] that disrupted and postponed their plans to conceive a child. The petitioner and [A.B.] agreed that she would use the Reproductive Material to conceive a child, regardless of whether [A.B.] died as a result of his [content redacted].
[4] Unfortunately, [A.B.] passed away without giving his written consent to the petitioner’s use of the Reproductive Material for the purpose of creating an embryo, as required by s. 8(1) of the Assisted Human Reproduction Act, S.C. 204, c. 2 (“AHRA”) and ss. 3(1) and 4(1) of the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”).
89] Here, I have found that [A.B.] expressed his consent both to the petitioner and to various care providers, to the use by the petitioner of the stored sperm for reproductive purposes after his death.
93] Here, [A.B.] generated the sperm that was surgically retrieved from him, frozen and stored at Genesis.
Vancouver Calgary Assisted Reproduction Dispute Lawyers Explain Only Sperm Donor Could Consent
[94] The sole purpose for extracting and storing the sperm was to preserve it for later use by [A.B.] and the petitioner to attempt to conceive a child. While [A.B.] was alive, Genesis stored the frozen sperm on his behalf and treated it as [A.B.]’s property. Only [A.B.] could consent to the use of the stored sperm for reproductive purposes permitted under the AHRA.
[95] While [A.B.] could not sell the stored sperm, only he could authorize its reproductive use by his spouse following his death, or donate it for the reproductive use of a third party.
[96] I find that [A.B.] had rights of use and ownership in the Reproductive Material sufficient to make it property.
[131] The circumstances of this case are extraordinary. [A.B.] freely and repeatedly expressed his consent to the petitioner’s use, following his death, of the Reproductive Material. He communicated his agreement to the petitioner’s use of his stored sperm to the petitioner, to his social worker, to a nurse at the [content redacted] hospital where his [content redacted] was performed, to his family doctor, and to Genesis.
[132] [A.B.] fully understood that the Reproductive Material would be used in accordance with his wishes to create an embryo, and would be used, following his death, by the petitioner to attempt to conceive a child.
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[133] One of the guiding principles of the AHRA is the promotion and application of free and informed consent as a fundamental condition for the use of human reproductive technologies. Another guiding principle, set out in s. 2(b), is that the benefits of the technology for individuals, families and society can be most effectively secured by appropriate measures for the protection and promotion of human health, safety and dignity. Here, [A.B.] and the petitioner sought to use the technology in order to have a child of their own. They took appropriate steps to ensure that the [content redacted] would not be passed to any child they conceived through in-vitro fertilization. They consulted with medical specialists about the safe use of the technology.
[134] To deny the petitioner the use of the Reproductive Material intended by [A.B.] would be both unfair and an affront to her dignity.
[135] [A.B.] expressed his consent to the petitioner’s use of the Reproductive Material after he had the benefit of professional counselling from his [content redacted] social worker, a nurse trained in [content redacted] fertility issues and his family doctor.
Vancouver Calgary Assisted Reproduction Dispute Lawyers Point Out Surviving Spouse Entitled To Use Frozen Sperm To Create Embryo Rules Court
[136] I conclude that in the circumstances of this case, [A.B.]’s consent, although not in writing, specifically contemplated the petitioner’s reproductive use of his stored sperm after his death, and was sufficient to satisfy the fundamental objective of the AHRA that the donor’s consent must be both free and informed. Accordingly, the Court may order the release of the Reproductive Material to the petitioner to enable her use of that material for the purpose of creating an embryo.
RELIEF
[137] This Court declares that the Reproductive Material of [A.B.] stored at Genesis is the sole property of the petitioner.
[138] The Reproductive Material shall be released by Genesis Fertility Centre to the petitioner, K.L.W., for her use to create embryos for the reproductive use of the petitioner, and for no other purpose.
If you have a disputed frozen reproductive material dispute pick up the phone and call our Vancouver Calgary Assisted Reproduction Lawyers toll-free at 1 877 602 9900
