Estate Planning and Assisted Human Reproduction – Hull on Estates #220
This week on Hull on Estates, Kathryn Pilkington and Paul Trudelle discuss an article written by Clare Burns, with assistance from Anastasija Sumakova, entitled “Mission Impossible: Estate Planning and Assisted Human Reproduction”, and the numerous estate planning issues that arise from assisted human reproduction.
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Paul E. Trudelle – Click here for more information on Paul Trudelle.
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
Kathryn Pilkington: Hello and welcome to Hull on Estates. You’re listening to episode 220 on August 31st.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Paul Trudelle: Hi and welcome to another episode of Hull on Estates. I’m Paul Trudelle.
Kathryn Pilkington: And I’m Kathryn Pilkington.
Paul Trudelle: How are you today, Kathryn?
Kathryn Pilkington: I’m doing really good, Paul. How are you?
Paul Trudelle: Very good. On the last real weekend of summer before…
Kathryn Pilkington: Yes.
Paul Trudelle: Before Labour Day and back to school.
Kathryn Pilkington: That’s true.
Paul Trudelle: And back to…
Kathryn Pilkington: All the kids getting ready.
Paul Trudelle: Yes. Speaking of kids, that’s an excellent segway.
Kathryn Pilkington: Thank you.
Paul Trudelle: We are gonna speak today about the issue of assisted human reproduction and estate planning.
Kathryn Pilkington: Yes, actually I recently found an excellent article written by Clare Burns and it’s entitled “Mission Impossible: Estates Planning and Assisted Human Reproduction”. And really it deals with the enactment of the Assisted Human Reproduction Act which sets out a framework for the use of assisted reproduction technology. So it’s really an interesting and very new topic for us to talk about today.
Paul Trudelle: Yes it is, it’s very new and it’s a tough one to mesh with the ancient concepts of intestacy and estate planning. And I think one of the points Clare makes is that the common law and the legislation hasn’t really kept up with technology. And it’s something that we’re going to have to grapple with very soon in order to deal with these new technologies and how they’re creating new people, how they’re creating possibly new property and how that’s gonna be dealt with in the estates realm. I guess just to go through some of the points that she makes in her paper and it’s an excellent paper and like you, I recommend it to everyone. I read this and started thinking about the area. It seems that there’s a lot more questions than there are answers right now and I think that’s a product of just the recent nature of this legislation and the recent nature of the technology and how it’s gonna fit. And I think we’re gonna see this issue coming up a lot in the future.
Kathryn Pilkington: Sure and you know you can really see that it’s very interesting. There’s really a host of issues that touch on estates. There are issues with succession when you’re talking about intestacy. But even before that, I guess you have to start to consider issues surrounding the collection and the use of the genetic material.
Paul Trudelle: Right. And the Assisted Human Reproduction Act talks about the collection and the key with respect to making use of human reproductive material is the consent of the donor. And that’s with respect to using an embryo or even removing human reproduction material from a donor’s body after death requires the prior consent of the donor, presumably have to be given before he passes or she passes away. And the same with any in vitro embryo. Written consent is the key to making use of any of those materials.
Kathryn Pilkington: Right. And I think that Clare sets out some very important questions in her article, very concisely. So the first question would be, what is the legal status of the genetic material? And the second question would be, is it possible to authorize one’s personal representatives to give consent under the Assisted Human Reproduction Act? And I guess really that’s speaking about very relevant issues in estates law today.
Paul Trudelle: Right. And Clare gets into a discussion of whether it’s property or not. It’s a difficult thing to deal with and there’s case law that goes different ways with respect to whether this is property. The Court seems to grapple with the very distinct nature of these materials and whether they are property or not as, you know, they’re seen as life in many ways. There is case law, quite a bit of the case law is out of the U.S. that talks about this property including embryos being property and to be dealt with as a chattel. And that sort of I guess leads to the next question is that if the deceased consented or provided consent to the estate trustee, then the estate trustee may be able to make decisions with respect to that. The question I guess becomes whether the Will is the prior consent of the deceased. And I guess that’s something that the Court has to and we’re gonna have to grapple with as time goes on.
Kathryn Pilkington: Right. And I think Clare sets out the idea that before someone dies of course they could sign consents such that they do consent to the collection and use of their genetic material including their sperm but at the end of the day it’s really not clear what the Courts will do with those sorts of consents.
Paul Trudelle: Right. Another issue that comes up is if, let’s say, an egg or a sperm is property and there is no consent, is that something then that the estate trustee can dispose of rather than allow its use. If there’s no consent to its use then it would presumably need to be disposed of in some way and that becomes the responsibility of the estate trustee.
Kathryn Pilkington: Right. And it’s a pretty onerous responsibility. Estate trustees have a lot of responsibilities right now and obligations under law and you can only imagine if you were designated as an estate trustee and you were faced with this sort of question and you had to grapple with what to do with somebody’s genetic material.
Paul Trudelle: Right. I agree. And one of the points that Clare makes with respect to delegating authority to estate trustee is it’s not clear whether it would work or not but it’s something that could be attempted and something that the estate solicitor should discuss with his client and attempts to put some direction…give some direction on with respect to making a Will and providing that consent so that it complies with the current legislation.
Kathryn Pilkington: Right. And all of the formalities related to making a Will and testamentary instruments.
Paul Trudelle: Right. The paper goes on to talk about can personal representatives, an attorney or a guardian of property, consent to the collection and use of genetic material during the donor’s incapacity. That’s something that might be…would be governed by the Substitute Decisions Act and the questions that arise are numerous. Is this property that’s dealt with by the Power of Attorney by the attorney for property? Is it a personal care decision that’s made by the attorney for personal care? Again the definition of these materials and whether they are property is very relevant to that discussion.
Kathryn Pilkington: Absolutely. And, you know, if you take that one step further and you think about some of the decisions that an attorney under a Power of Attorney for personal care has to make, you start to wonder about whether it would be really possible for an attorney for personal care to start making decisions with respect to the incapable party’s genetic material.
Paul Trudelle: Right. And she does refer to the prohibition in the Health Care and Consent Act with respect to dealing with a procedure such as sterilization or the removal of regenerative or non-regenerative tissue. And that may extend to this genetic material and that therefore it may be something that the Power of Attorney for health care…personal care, can’t deal with. Again she concludes that the ability to delegate the authority and consent to the collection and use of genetic material is very much in doubt.
Kathryn Pilkington: Well, sure, yeah. And you can just imagine. And she mentions this in her article. It really would be a brave, new world if you were able to, as an attorney for personal care, start making decisions with respect to someone else’s reproductive rights. And I believe that she says that that’s probably a decision that would be excluded.
Paul Trudelle: Yes. Yeah and I think that’s a fair comment. The second part of the paper deals with children who would be born as a result of the collection of this genetic material after the date of death of the donor and whether they would fall into the definition of children or beneficiaries either intestacy or under the terms of a Will. There’s a whole range of issues as to whether the child would be considered a child if there was an intestacy. It’s important to remember the definition under the Succession Law Reform Act of a child. A child includes a child conceived before and born alive after the parent’s death and issue includes a descendent conceived before and born after the person’s death so the thorny issue arises as to when the child is actually conceived. If there’s a fertilized embryo, is that conception or is it not conception until sometime after when it’s placed with the gestational carrier.
Kathryn Pilkington: Right.
Paul Trudelle: I struggled for that word. So that’s a real issue. It’s probably easier to plan for that sort of an issue on intestacy if you can turn your mind to that and raise these issues and address this in your Will. If there’s a clear intention in your Will and definition as to who your beneficiaries are, who they’re to include or not include, that may solve a number of problems. Clare Burns suggests in her paper that the profession, estate planners, should develop a standard practice whereby we discuss with our clients whether genetic material currently exists or whether it’s something that may exist in the future and whether the issue of consent to its collection and use afterwards should be dealt with. And also how these children born after as a result of this are to be treated under the terms of the deceased’s Will. One of the problems that arises from that, though, is if there’s this fertilized egg or other genetic material sitting around for some time, how long do you have to keep that class open?
Kathryn Pilkington: Right.
Paul Trudelle: If I divide things amongst my children but my child isn’t born for several years after my death, when does that class close and what does the estate trustee do in the meantime or how long does he or she have to wait?
Kathryn Pilkington: I mean conceivably they could be waiting 10 to 20 years.
Paul Trudelle: Conceivably.
Kathryn Pilkington: That word just came to mind.
Paul Trudelle: Yes. I guess we will conclude now this by going over Clare’s conclusion which I think is excellent.
Kathryn Pilkington: Excellent, right. And you know Clare really says that in conclusion it’s not likely that any solicitor advising clients in estate planning context can adequately address their client’s needs. However, with further discussion and perhaps legislative reform, we believe these matters can and should be addressed so that more certain advice can be provided to parents about the steps necessary to plan for and protect their genetic material, it’s use and their children.
Paul Trudelle: Yes, thank you. So that…we’ll conclude with her conclusion. I think that the area is a very exciting one and it’s going to be one that’s gonna be discussed a lot I’m sure in the coming days and weeks and months and years, I’m sure, as we grapple with these real problems where science has to mesh with public policy and estate law.
Kathryn Pilkington: And definitions of property which seem to becoming ever more flexible.
Paul Trudelle: Yes. And it’s going to likely be a hot debate just because of the nature of the property that we’re dealing with.
Kathryn Pilkington: Absolutely.
Paul Trudelle: Okay, well with that maybe we’ll wrap up for this week. I’m Paul Trudelle.
Kathryn Pilkington: And I’m Kathryn Pilkington.
Paul Trudelle: We should invite your comments. If you do want to send us an email, please send it to us at firstname.lastname@example.org. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and other discussions on today’s practice of law. Thank you.
Kathryn Pilkington: It was a pleasure. Thank you.
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