Whereas estate plans are typically revised by creating a new will or codicil, the process of making changes may be more complex when an estate includes the client’s reproductive materials. Following up on last month’s Solicitor’s Tip on estate planning for the posthumous use of reproductive materials,[1] this month’s Solicitor’s Tip considers the steps required to withdraw consent to their posthumous collection or use and to request their disposal or destruction, beyond including directions in the client’s will.
Withdrawing Consent to the Posthumous Use of Reproductive Materials
As noted in last month’s Solicitor’s Tip,[2] the Assisted Human Reproduction Act (the “AHRA”) is a consent-based statutory scheme; the use of human reproductive material without the donor’s consent is expressly prohibited.[3] In keeping with the “deep societal respect for donor consent” reflected by the legislation,[4] a client who previously consented to the posthumous use of their reproductive material for the purpose of creating an embryo may subsequently withdraw their consent,[5] as can a client who previously consented to the posthumous removal of reproductive material from their body.[6]
The formal requirements for withdrawing consent are articulated in the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (the “Consent Regulations”).[7] A withdrawal must be in writing and communicated in writing to the person who intends to use the reproductive material.[8] The timing of the communication is also critical. Where reproductive materials have already been extracted from the donor’s body and are intended for use following the donor’s death, the withdrawal of consent will only be effective if it is communicated before the materials are used.[9]
Alternatively, if the client previously consented to the posthumous removal of reproductive material from their body, the person who intends to remove the material must receive written notification of the withdrawal of consent before the material is removed.[10] Once a donor’s consent has been withdrawn in accordance with the Regulations, using the reproductive material isprohibited.[11]
Should a Withdrawal of Consent Be Included in the Client’s Will?
If the client’s existing will expressly records their consent to the posthumous use of their reproductive material, but the client wishes to withdraw their consent, it is advisable to update the will to include this information and prevent any uncertainty about the client’s intentions. However, the will should not be relied upon to actually withdraw the client’s consent.
The Consent Regulations appear to contemplate consent being withdrawn by a donor during their lifetime – they use the present tense and apply “[i]f a donor wishes to withdraw their consent.”[12] This language implies that the donor must still be alive at the time of withdrawal, although there is no case law addressing this specific point. As such, a will would be ineffective for withdrawing consent to the use or retrieval of reproductive material, since a will only becomes operative upon death.[13]
It would also be unwise to use a will to withdraw consent to the removal of reproductive material. Under the Consent Regulations, written notification that the donor has withdrawn their consent must be provided before the reproductive material is retrieved. Recognizing that a fertility centre may require posthumous retrieval to occur within 36 hours of death,[14] a will may be located too late to effectively withdraw consent to the removal of reproductive material. Even if the will were located in time, the material would have been removed well before probate is granted.
Is Withdrawing Consent Necessary Post-Separation?
For clients who previously granted consent to their spouse or common-law partner to posthumously use or retrieve their reproductive material, it may be unclear whether it is necessary to withdraw their consent if they have since separated. Technically, a former spouse or common-law partner should not be able to use reproductive materials posthumously. The Consent Regulations only permit a donor to grant consent to their current spouse or common-law partner,[15] and also specify that the term “spouse” does not include a person who, at the relevant time, is living separate and apart from the person to whom they are married because of the breakdown of the marriage.[16]
To ensure that the client’s intentions are honoured, it is preferable for their consent to be expressly withdrawn, rather than rely on the legislation to prevent the posthumous use or retrieval of their reproductive material post-separation. If the client were to pass away unexpectedly, it may be unclear whether they were living “separate and apart” from their spouse at the time of death or, alternatively, whether they were still cohabitating in a conjugal relationship with their partner. Depending on the circumstances, including the position taken by the surviving spouse or partner as to the relationship, there is a risk that they may still be able to use the client’s reproductive material, even if the client believed that they had separated and that the previous consent was no longer effective.
Directing the Posthumous Disposal of Reproductive Materials
The statutory framework does not address what donors should do if they have reproductive material stored at a fertility clinic that they do not want to use posthumously. Neither the AHRA nor the Consent Regulations establish a procedure for requesting the destruction or disposal of stored reproductive material.[17]
Given this lack of guidance, if a client wants their reproductive material to be destroyed following their death, it is advisable to contact the fertility clinic or facility storing the material to determine what steps to take to achieve this objective. For example, the clinic may require donors to use specific paperwork to request the disposition or destruction of sperm or ova. The client’s will could also direct the disposal of their reproductive material and entrust this task to the estate trustee. If paperwork related to the disposal of the client’s reproductive material must be provided to the facility following the client’s death, the necessary arrangements should be incorporated into the client’s estate plan.
It is important to note, however, that requesting the destruction or disposal of the client’s reproductive material should not be treated as a substitute for withdrawing an existing consent to the posthumous use or retrieval of the reproductive material. If the client previously granted their consent, and that consent has not been withdrawn, it is unclear whether a direction to destroy the client’s reproductive material would be effective. Accordingly, a client should only request the disposal of their reproductive material if they have either not consented to the posthumous use or retrieval of that material, or have already withdrawn their consent.
Estate Planning Takeaways
If a client no longer wants their reproductive material to be used or retrieved posthumously, it is important to ensure that any consent previously granted is expressly withdrawn during the client’s lifetime in accordance with the Consent Regulations. So long as any consent granted for the posthumous use of their reproductive material has been withdrawn, the client ought to be able to request that those materials be destroyed posthumously.
While it is unwise to rely solely on the client’s will to withdraw their consent, or request the disposition of their reproductive material, it is nevertheless advisable to ensure that the client’s instructions are recorded in their will. Addressing the use, retrieval or disposition of a client’s reproductive material in their will ought to reduce uncertainty after their death, and help ensure that their final intentions are honoured.
[1] See Suzana Popovic-Montag, “Estate Planning for the Posthumous Use of Reproductive Materials”, Solicitor’s Tip (10 August 2026), online: Hull & Hull LLP <https://hullandhull.com/2026/08/solicitors-tip-august-2026-estate-planning-for-the-posthumous-use-of-reproductive-materials/> [August 2026 Solicitor’s Tip].
[2] Ibid.
[3] SC 2004, c 2, s 8 [AHRA].
[4] See SH v DH, 2019 ONCA 454 at para 71.
[5] Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137, ss 3(a)(ii), (b), (c), 5 [Consent Regulations].
[6] Ibid, ss 7(b), (c), 9(1).
[7] Ibid.
[8] Ibid, ss 5, 7.
[9] Ibid.
[10] Ibid, ss 7(c), 9(2).
[11] See SH v DH, supra note 4at para 71.
[12] Consent Regulations, supra note 5, ss 5(1), 9(1).
[13] See Palichuk v Palichuk, 2023 ONCA 116.
[14] LT v DT Estate, 2020 BCCA 328 at para 2.
[15] Ibid, ss 3(a)(ii), 3(b), 4(1)(b), 4(2), 7(a). See also the August 2026 Solicitor’s Tip, supra note 1; Singh v Mount Sinai Fertility Corp, 2024 ONSC 2853.
[16] Consent Regulations, ibid, s 1(2).Similarly, “common-law partner” is defined under section 1(1) of the Regulations as a person who is cohabiting with the donor in a conjugal relationship at the relevant time, for at least one year
[17] AHRA, supra note 3, does, however, authorize the Governor in Council to make regulations respecting the disposition of sperm and ova: see s 65(1)(d.1).