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PARENTS AND CHILDREN - Medically-assisted procreation - Consent

Monday, January 20, 2020 @ 8:30 AM  


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Application by the wife for an order that her dead husband’s sperm be removed from his body to be used for reproductive purposes by the wife. The husband did not provide written consent to the posthumous removal of his reproductive material for the purpose of creating an embryo as required by s. 8(2) of the Assisted Human Reproduction (Section 8 Consent) Regulations. The husband died suddenly and unexpectedly. The parties had one child. The evidence indicated that the husband wanted more children. The wife argued that s. 8(2) and its prohibition against the posthumous removal and use of reproductive material in the absence of written consent was only intended to prohibit the posthumous removal and use of reproductive material for persons who desired to have children and who contemplated or anticipated their death.

HELD: Application dismissed. It was extremely unlikely that the legislature only considered the need for posthumous consent for persons who desired to have children and who contemplated or anticipated their death, as opposed to persons where death was sudden. The vast majority of spouses and common-law partners who were at a stage in their life where they were desiring to have children would be at an age where a partner's death would more commonly be unexpected. The interpretation proposed by the wife was not consistent with the clear and unequivocal language of the provision, the level of detail provided in the provisions or the breadth of assisted reproductive issues canvassed by the Act. There was no case authority to suggest that parens patriae jurisdiction was available to make decisions in the best interests of a deceased. The sperm removed and stored was not property vested in the wife.

L.T. v. D.T. Estate, [2019] B.C.J. No. 2373, British Columbia Supreme Court, D.M. Masuhara J., December 9, 2019. Digest No. TLD-January202020001