PARENTS AND CHILDREN - Medically assisted procreation - Consent

Appeal by the wife from the dismissal of her application to permit the removal of her deceased husband’s reproductive material to be stored so that the appellant could use the material for her reproductive use. The husband died unexpectedly. The spouses had one child together and wanted to have more children. Neither spouse considered what would happen if one or other of them died. They did not turn their minds to the possible posthumous use of their reproductive material. The judge concluded that Parliament intended to permit the posthumous use of a donor’s reproductive material only if the donor provided consent in compliance with the Regulation and that removal and use of the husband’s reproductive material was thus prohibited under the Assisted Human Reproduction Act and Regulation.

HELD: Appeal dismissed. Section 8(2) of the Act was a clear and unequivocal prohibition on removal of reproductive material to create an embryo unless the donor gave written consent for that use in accordance with the Regulations. The section did not have any exceptions. The Regulation was clear and unambiguous. It did not confer any jurisdiction on a court to avoid the universality of its application or to exempt a person from its operation where the necessary conditions for consent were not complied with. Granting permission to use the husband’s reproductive material would be contrary to the explicit language of s.8(2) of the Act and the overarching legal and moral objective of the Act to protect the donor’s interest in their reproductive material by only permitting its use with their express and informed written consent.

L.T. v. D.T. Estate, [2020] B.C.J. No. 1879, British Columbia Court of Appeal, D.C. Harris, R. Goepel and P. Abrioux JJ.A., November 24, 2020. Digest No. TLD-January42021010