A recent B.C. Court of Appeal decision, L.T. v. D.T. Estate, 2020 BCCA 328 (CanLII) clarifies the ability to harvest and use reproductive material from a deceased individual. The decision makes it clear that the material cannot be collected unless the deceased consented to the removal of the material prior to death. The consent must be informed, and in writing.

The unfortunate facts are that Mr. and Ms. T were in a long-term relationship. They married three years before Mr. T’s death, and had one child together. They had discussed having another child. Mr. T died suddenly and unexpectedly. Ms. T brought an emergency application to allow for the removal of Mr. T’s reproductive material. The application was allowed, on the condition that the material not be released until the court could consider the matter further. The application judge then heard the matter and found that the removed reproductive material could not be used. The order was stayed pending an appeal to the B.C. Court of Appeal. “With regret”, and “aware of the painful and tragic circumstances confronting Ms. T’s family”, the B.C. Court of Appeal dismissed the appeal.

The B.C. Court of Appeal found that the clear wording of the Assisted Human Reproduction Act, S. C. 2004, c.2. applied. Section 8(2) of the Act mandates a clear prohibition on the removal of human reproductive material after the donor’s death without the donor’s written consent, to be given in accordance with the regulations.

The Court of Appeal distinguished a prior decision where material was allowed to be used notwithstanding the fact that the consent did not comply with the Act. In K.L.W. v. Genesis Fertility Clinic, 2016 BCSC 1621, (which Natalia Angelini and Nick Esterbauer podcasted on, here) the deceased had stored reproductive material before he died. He did not, however, give formal consent to its use posthumously. The court in K.L.W. held that the material was “property” and that it passed to the surviving spouse. While not commenting on the “reproductive material as property” argument, the Court of Appeal challenged the correctness of the K.L.W. decision. “The case should be treated as having been overruled insofar as it contemplates the possible use of reproductive material where the statutory conditions have not been complied with.”

The B.C. Court of Appeal stayed its own order to permit the parties to consider an appeal to the Supreme Court of Canada.

A consideration of the possible posthumous use of reproductive material should be a part of most estate plans. If you want to be able to use it, ensure that the requirements of the Assisted Human Reproduction Act have been complied with.

Thanks for reading.

Paul Trudelle