Over the last two months, our Solicitor’s Tips have focused on estate planning for the posthumous use of reproductive materials, including how a donor may withdraw their consent. A related issue that also merits exploration is whether incapacity planning can extend to the posthumous use of reproductive material. Can a substitute decision-maker appointed by a donor consent to the posthumous use of the donor’s reproductive material or, alternatively, withdraw the donor’s consent should the donor lose capacity?
Even though there does not appear to be any Canadian case law directly on point, it seems probable that the courts in Ontario would answer this question in the negative. Case law interpreting the Assisted Human Reproduction Act (the “AHRA”) indicates that property law principles do not govern the use of reproductive materials where they are inconsistent with the Act, and that donor consent cannot be substituted. Moreover, neither the AHRA nor the Substitute Decisions Act, 1992 (the “SDA”) indicates that an attorney may consent to the posthumous use of reproductive material or withdraw a donor’s prior consent.
Continuing Powers of Attorney and Reproductive Materials
In Ontario, an attorney can be appointed under the SDA through either a continuing power of attorney for property or a power of attorney for personal care. Whereas a continuing power of attorney for property authorizes an attorney to make decisions regarding the donor’s property, a power of attorney for personal care allows the attorney to make decisions regarding the donor’s personal care, such as health care decisions.
It seems improbable that an attorney appointed under a continuing power of attorney can consent to the posthumous use of a donor’s reproductive material or withdraw such consent, since it seems improbable that reproductive material would be considered “property” for the purposes of a continuing power of attorney. Both the Court of Appeal for Ontario and the British Columbia Court of Appeal have confirmed that property law principles do not govern the use of reproductive materials where they are inconsistent with the consent regime established by the AHRA.In SH v DH, 2019 ONCA 454, the Ontario Court of Appeal held that property law did not apply to a dispute over embryos, despite contracts the parties entered into with the lab that created the embryos and subsequently with the Ontario fertility centre that stored them. Later, in LT v DT Estate, 2020 BCCA 328, the British Columbia Court of Appeal confirmed that, notwithstanding past case law which treated reproductive materials as having some attributes of property, “such principles are displaced by and inconsistent with” the consent requirements articulated in the AHRA and the accompanying Assisted Human Reproduction (Section 8 Consent) Regulations.
Consent May Not Be Substituted
There is an even more fundamental reason why it is unlikely that a substitute decision-maker can grant consent to the posthumous use of reproductive material or withdraw such consent – the British Columbia Court of Appeal held in LT v DT Estate that “substituted consent” to the use of reproductive material is “not consent” under the AHRA. While this case specifically focused on whether a deceased donor could be treated as having consented to the posthumous use of his reproductive material, despite the absence of written consent required by the AHRA, the Court of Appeal held more broadly that consent under the AHRA may not be implied, hypothetical, imputed or substituted. The Court then went on to observe that “Parliament has provided for legal certainty in what is, without doubt, a morally challenging and humanly complex area.”
Given that the AHRA provides certainty as to who may make reproductive decisions and how those decisions must be expressed, it seems unlikely that a third party can revoke a donor’s consent should the donor lose capacity – neither the AHRA nor its regulations authorize a donor’s consent to be substituted or for a substitute decision-maker to withdraw consent on a donor’s behalf. Indeed, not even the courts can dispense with the requirements in the AHRA; as noted by the British Columbia Court of Appeal in LT v DT Estate, there is no provision in the AHRA that grants the court discretion to avoid the universal and uniform application of the legislation.
Powers of Attorney for Personal Care and Reproductive Materials
Moreover, the SDA also does not appear to support the notion of a substitute decision-maker appointed through a power of attorney for personal care being able to consent on the donor’s behalf to the posthumous use of their reproductive material, or to withdraw the donor’s prior consent.
The potential use of a power of attorney for personal care in relation to reproductive material was considered by Clare E. Burns and Anastasija Sumakova in their 2010 paper, “Mission Impossible: Estate Planning and Assisted Human Reproduction.” They note that section 49 of the SDA provides an attorney with authority to make a personal care decision in two situations – first, where the Health Care Consent Act, 1996 (the “HCCA”) applies to the decision and authorizes the attorney to make it, and second, where the HCCA does not apply, and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any conditions or restrictions contained in the power of attorney for personal care.
Since the HCCA does not expressly address the use of reproductive materials, it seems improbable that a general power of attorney for personal care would provide an attorney authority over a donor’s reproductive material. Moreover, as Burns and Sumakova pointed out, the HCCA “does not affect the law relating to giving or refusing consent on another person’s behalf” for certain procedures, including non-medically necessary sterilization and the removal of tissue for implantation in another person’s body. On this basis, Burns and Sumakova reasoned that “[i]t would be logical to assume that decisions with respect to reproduction should be excluded from the purview of the Health Care Consent Act.” This conclusion is also logical given that the AHRA was specifically enacted to govern consent over the use of reproductive materials.
Technically, it could also be argued that posthumous reproduction is not actually related to a donor’s personal care, as the donor is already dead by the time their reproductive materials are used.
Planning for Reproductive Materials and Incapacity
Without a Canadian authority squarely addressing whether a substitute decision-maker may consent to the posthumous use of a donor’s reproductive material, or withdraw the donor’s previously given consent, it seems reasonable to infer that a power of attorney cannot be used in this situation, unless the AHRA is amended. Accordingly, for clients with stored reproductive material, it is imperative to ensure that their wishes regarding the posthumous use of those materials are acted on while the client still has capacity.
Thank you for reading, and have a wonderful week!
Suzana.