As more Canadians rely on assisted reproductive technology,[1] estate planning for reproductive materials like sperm and ova is likely to become more common. This month’s Solicitor’s Tip focuses on estate planning for these materials, addressing:
- why reproductive materials cannot simply be gifted under a will;
- what use can be made of reproductive materials posthumously;
- statutory requirements that must be satisfied in order to use such materials posthumously; and
- what directions regarding reproductive materials ought to be included in a will.
Reproductive Materials Are Not Property
Because the posthumous use of reproductive materials in Canada is governed by the Assisted Human Reproduction Act (the “AHRA”),[2] it seems unlikely that reproductive materials can simply be gifted under a will. While case law predating 2020 characterized reproductive materials as property,[3] including for the purposes of estate planning and succession,[4] more recent decisions from British Columbia and Ontario have concluded that the AHRA displaces the application of common law property principles to reproductive materials and in vitro embryos.[5] Moreover, in LT v DT Estate, the British Columbia Court of Appeal expressly overruled a prior decision in which the BC Supreme Court held that reproductive materials are property that passes to a surviving spouse on intestacy and constitute personal property under provincial wills legislation.[6] Given these developments, it seems improbable that reproductive materials can be characterized as property, meaning a testamentary gift of reproductive materials would likely be ineffective.
Posthumous Use of Reproductive Materials Must Comply with AHRA
Even if reproductive materials cannot be gifted in a will, per se, their posthumous use should still be considered when crafting an estate plan. The AHRA and its associated regulations permit reproductive materials to be used posthumously, albeit in limited ways, and articulate requirements that must be satisfied for lawful posthumous use. So long as the client complies with the requirements under the AHRA, the client’s will can address how their reproductive materials are to be handled following their death. Conversely, it is critical to understand that if a will provides for the posthumous use of reproductive materials, but the legislative requirements have not been satisfied, the client’s wishes will not be honoured.
Ways That Reproductive Materials May Be Used Posthumously
Regardless of whether the client’s reproductive materials have already been extracted from their body or will be extracted following their death, the AHRA and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (the “Consent Regulations”) only permit reproductive materials to be used posthumously in three ways:
- by the donor’s spouse or common-law partner, for their own reproductive purposes;
- to improve assisted reproduction procedures; or
- to provide instruction in assisted reproduction procedures.[7]
As criminal legislation, the AHRA prohibits the posthumous use of reproductive materials by any third party other than the donor’s spouse or common-law partner. There are no exceptions to this rule – not even for the donor’s family.[8] While a donor can consent to a third party using their reproductive materials during their lifetime, this consent does not extend to the posthumous use of reproductive materials.[9] The AHRA also prohibits the distribution of reproductive materials for uses other than those permitted under the Act.[10] If the AHRA is contravened through the unauthorized removal, use or distribution of reproductive materials posthumously, criminal penalties may be imposed.[11]
These prohibitions ought to be considered when preparing the client’s will. Any will clause purporting to authorize a person other than the client’s spouse or common-law partner to use the client’s reproductive materials posthumously will be ineffective. Similarly, a will clause ought to be disregarded if it directs the estate trustee to take the testator’s reproductive materials to another jurisdiction so a different third party can use them to create an embryo.[12]
AHRA’s Consent Requirements
To ensure that a client’s reproductive materials can be used posthumously, it will also be necessary to satisfy the consent requirements articulated in the AHRA and the Consent Regulations.[13]
Consent to use the client’s reproductive materials posthumously must be recorded in writing. In practice, the requisite form is usually provided by the fertility clinic when the client’s reproductive materials are collected.[14] In addition to confirming that the client consents to the posthumous use of their reproductive materials, the form should also confirm that the client was informed in writing:
- as to how their material will be used;
- their right to withdraw their consent; and
- that a withdrawal will only be effective if it is in writing and the person with consent to use the reproductive materials is given written notice of the withdrawal before the materials are used.[15]
To comply with the AHRA and the Consent Regulations, the written consent must also be signed by the client and attested by a witness.[16]
The consent requirements of the AHRA are mandatory – there are no exceptions.[17] The British Columbia Court of Appeal has confirmed that other forms of consent, such as implied, hypothetical, imputed, or substituted consent, cannot render the posthumous removal of reproductive materials lawful.[18] If consent has not been provided in writing and does not satisfy the requirements articulated in the Regulations, the court cannot grant an order permitting the client’s reproductive materials to be used posthumously, even if there is evidence proving that the client wanted their materials to be used.[19]
Will Drafting Tips for Reproductive Materials
For clients who already have reproductive materials stored or have consented to reproductive materials being taken from their bodies posthumously, it is advisable to use their will to confirm what use can be made of those materials. If this issue is not addressed in the will, the client’s estate trustee may not realize that the client has reproductive materials stored, making it difficult to ensure that the client’s final wishes are honoured.
The client’s will could also confirm that the requirements of the AHRA and the Consent Regulations have been satisfied, so long as this is in fact the case,and also indicate where the requisite paperwork is located. Of course, if the AHRA and the Consent Regulations have not been satisfied, any will clause addressing the use of reproductive materials will be ineffective, recognizing that the consent requirements cannot be satisfied by a will alone. A will clause cannot authorize the posthumous use of reproductive materials unless the client satisfies the requirements under the AHRA and the Consent Regulations during their lifetime.
[1] See “Five facts about assisted reproduction” (27 April 2022) Sinai Health, online: <https://www.sinaihealth.ca/news/five-facts-about-assisted-reproduction>.
[2] SC 2004, c 2 [AHRA].
[3] In Alberta, see CC v AW,2005 ABQB 290 (embryos created from sperm donation found to be property). In BC, see Lam v University of British Columbia, 2015 BCCA 2 (sperm found to be property under the Warehouse Receipt Act, RSBC 1996, c 481).
[4] KLW v Genesis Fertility Centre, 2016 BCSC 1621 [KLW].
[5] See LT v DT Estate, 2020 BCCA 328 at para 36. The Court’s decision has also been discussed on the Hull & Hull LLP blog: see Paul Trudelle, “Posthumous Use of Reproductive Material” (4 December 2020), online (blog): <https://hullandhull.com/2020/12/posthumous-use-of-reproductive-material/>. See also Singh v Mount Sinai Fertility Corp, 2024 ONSC 2853 at para 36 [Singh].
[6] See LT v DT Estate, ibid at paras 42-44, where the Court of Appeal overruled KLW, supra note 4.
[7] Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137, ss 3(a)(ii), 3(b), 4(1)(b), 4(2), 7(a) [Consent Regulations].
[8] See Singh, supra note 5.
[9] See Consent Regulations, supra note 7, s 4(1)(c).
[10] AHRA, supra note 2, s 10. See also Singh, ibid at para 46.
[11] See AHRA, ibid, s 61.
[12] Singh, supra note 5.
[13] Consent Regulations, supra note 7.
[14] See, for example, Singh, supra note 5 at para 31.
[15] See the Consent Regulations, supra note 7, ss 3, 7, 8.
[16] Consent Regulations, ibid, s 1(3).
[17] LT v DT Estate, supra note 5 at paras 17-18.
[18] Ibid at para 23.
[19] The courts in Ontario and BC have confirmed that subsection 8(2) of the AHRA, supra note 2,is a clear and unequivocal prohibition on the removal of reproductive materials to create embryos if written consent has not been provided in accordance with the Consent Regulations: see LT v DT Estate, ibid at para 17; Singh, supra note 5 at para 27.
While the BC Supreme Court indicated in KLW, supra note 4, that the written consent requirement can be by-passed under exceptional circumstances, such as where extraordinary facts show free and informed consent, this is no longer good authority. In LT v DT Estate, the British Columbia Court of Appeal overruled KLW, holding that the judge “erred in approving use of reproductive materials contrary to the prohibition”: see para 44.