The Importance of Written Consent: Removal and Use of Human Reproductive Materials After Death


By Chantal M. Cattermole, Jeannette Aucoin and Shiona Nickel

In 2020, the BC Court of Appeal considered an important issue concerning the removal and use of human reproductive materials (sperm, ova, embryos): Whether a spouse or common-law partner (defined as a person who is cohabitating with an individual in a conjugal relationship for at least one year) can use their spouse or common-law partner’s human reproductive materials after death without prior consent?

Short Answer:

The answer is: no. In Canada, you must have informed, written consent in accordance with the Assisted Human Reproduction (Section 8 Consent) Regulations from your spouse or common-law partner to extract and use their human reproductive materials after their death.

Long Answer:

In L.T. v D.T., 2019 BCSC 2130, Mr. T. died suddenly and unexpectedly, and left behind his spouse, Ms. T, and their child. Mr. and Ms. T wanted more children and planned to have more children together. However, they did not consider what would happen if one of them died before having additional children, including whether their reproductive material could be used after death to produce more children. Mr. T did not provide written consent to the posthumous removal and use of his reproductive material.

Shortly after Mr. T died, Ms. T brought an urgent application seeking an order that Mr. T’s sperm be removed from his body, stored at an IVF Clinic, and used to create embryo(s) for the reproductive use of Ms. T. The application was heard on an urgent basis because Mr. T’s sperm would be rendered unusable 36 hours after death.

The application judge ordered that Mr. T’s reproductive material be removed and stored, but not released or used until a further court order could be made after a full hearing.

After a full hearing, the BC Supreme Court held that the removal and use of Mr. T’s reproductive material was prohibited because the Assisted Human Reproduction Act (the “AHRA”) and its regulations unequivocally require a donor (here Mr. T) to provide informed, written consent before the removal and use of their reproductive material, and Mr. T had not provided such consent.

The matter was appealed.

The issue on appeal was whether the lower court had properly interpreted section 8(2) of the AHRA, which provides:

(2) 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.

In L.T. v D.T. Estate, 2020 BCCA 328, the BC Court of Appeal upheld the lower court’s decision, stating that the ordinary meaning and context of section 8(2) of the AHRA and ss 6-8 of its regulations are clear and unequivocal; they require free and informed consent as a condition to the use of human reproductive material. The Court of Appeal emphasized the objective of the AHRA — to protect the donor’s interest in their reproductive material, which is achieved only by permitting its use with the donor’s informed, written consent.

Key takeaways:

You must have informed, written consent that complies with the AHRA regulations in order to use your spouse or common-law partner’s human reproductive material after their death. We recommend you seek advice from a lawyer if you and your spouse or common-law partner:

• are contemplating having one or more biological child;
• have sperm, ova, embryo(s) stored at a fertility clinic; or
• have provided written consent to each other in your respective Wills, or otherwise, to extract and use each other’s human reproductive material before and after death.

The AHRA regulations require that donors provide written consent using specific language. Therefore, both you and your spouse or common-law partner may need to consider signing properly worded consent forms, or amending your Wills, to ensure that the consent provided is in compliance with the regulations.

Our team of experienced Family Law and Estates & Trusts lawyers can ensure that you and your spouse or common-law partner have signed the properly worded consent forms. This way you can have peace of mind knowing that you and your spouse or common-law partner can remove and use each other’s human reproductive material to create an embryo in the event that either of you pass away. Please do not hesitate to contact us if you have any questions.