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Genetic Material Rights BC: Is Reproductive Material Property?


Developments in assisted reproductive technology have required a re-examination of genetic material rights BC and the world over. Determination of the nature and scope of property interests that a person can have in parts or products of the human body is always highly contextual, and often limited by legislation due to public policy reasons. There is danger that reproductive material may be used against a donor’s will to create a human being, as well as the possibility that reproductive material donated with the intent of creating a human being could be used for different purposes such as prohibited research or commercial ends.

Genetic Material Rights BC: Is Reproductive Material Property?

Developments in assisted reproductive technology have required a re-examination of genetic material rights BC and the world over. Determination of the nature and scope of property interests that a person can have in parts or products of the human body is always highly contextual, and often limited by legislation due to public policy reasons. There is danger that reproductive material may be used against a donor’s will to create a human being, as well as the possibility that reproductive material donated with the intent of creating a human being could be used for different purposes such as prohibited research or  commercial ends.

A recent decision on genetic material rights BC

The question of property rights in genetic material was considered in K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621.  On extraordinary facts of the case, the BC court concluded that the genetic material was the sole property of the petitioner, K.L.W., and that she could use it to create embryos for her reproductive use.

K.L.W.’s petition to determine property rights in the genetic material came after the death of her husband, A.B., who had serious health problems throughout his life. From an early stage in their relationship, A.B. and K.L.W. discussed having children. Both understood that because of A.B.’s medical condition, they would likely require in-vitro fertilization in order to conceive a child. In 2009, A.B.’s sperm (the “Reproductive Material”) was extracted, frozen, and stored at Genesis Fertility Centre. K.L.W. and A.B. agreed that K.L.W. would use the Reproductive Material to conceive a child, regardless of whether A.B. died as a result of his medical condition. In 2011, A.B. died of complications related to his illness. Before he died, K.L.W. promised A.B. that she would have their baby.

Legislative restriction on genetic material rights BC

A.B. died without giving his written consent to K.L.W.’s use of the Reproductive Material for the purpose of creating an embryo, as required by s. 8(1) of the Assisted Human Reproduction Act, S.C. 204, c. 2 (“AHRA”) and ss. 3(1) and 4(1) of the Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137 (the “Regulations”). No one had advised K.L.W. or A.B. that his written consent was required for K.L.W. to make use of his stored sperm for reproductive purposes in the event of his death. K.L.W. only learned of the requirement as a result of a conversation with a doctor at the Genesis Fertility Clinic shortly after her husband’s death. The doctor advised her that Genesis was able to continue to store the Reproductive Material, but could not release that material to her without A.B.’s written consent or a stipulation in his Will. Unfortunately, A.B. died intestate (i.e., without a Will).

Is A.B.’s Reproductive Material “property”?

In the K.L.W. case, the sole purpose for extracting and storing the sperm was to preserve it for later use by A.B. and K.L.W. to attempt to conceive a child. While A.B. was alive, Genesis stored the frozen sperm on his behalf and treated it as A.B.’s property. Only A.B. could consent to the use of the stored sperm for reproductive purposes permitted under the AHRA. Though its use was restricted by legislation (for example, the law restricts the sale of stored sperm), A.B. could authorize its reproductive use by his spouse following his death, or donate it for the reproductive use of a third party. In light of the circumstance, Pearlman J. concluded that that A.B. had rights of use and ownership in the Reproductive Material sufficient to make it his property.

Did property in the Reproductive Material pass to K.L.W. as sole beneficiary of A.B.’s intestate estate?

Given that conclusion that the Reproductive Material was the personal property of A.B., who owns it after his death? Section 20 of the Wills Estates and Succession Act, S.B.C. 2009, c. 13 governs the distribution of an estate where someone with a spouse but no children dies without a Will:

20      If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.

So it follows that pursuant to s. 20 of WESA, K.L.W. was the sole beneficiary of A.B.’s estate. No other person claimed any interest in A.B.’s Reproductive Material. The evidence unequivocally established that A.B. intended that K.L.W. would use the stored sperm for reproductive purposes following his death. Following A.B.’s death, K.L.W. paid the storage fees in order to store, preserve, and maintain the stored sperm for her own reproductive use. In the event that K.L.W. was to decide to discard the stored sperm, Genesis would require her written consent to its disposal. On consideration of those facts, the court was satisfied that property in the Reproductive Material vested in K.L.W. as A.B.’s spouse and sole beneficiary of his intestate estate.

What about the lack of written consent from the donor?

The evidence before the court established that during A.B.’s lifetime, he advised a social worker, a registered nurse, his aunt, his brother-in-law, and his family physician of the plan to conceive a child with K.L.W. and have a family, even if A.B. passed away. The court had no doubt that had the requirement for written consent under the AHRA been brought to A.B.’s attention, he would have promptly given his consent in writing to K.L.W.’s use, following his death, of the Reproductive Material. Thus, in the extraordinary circumstances of this case, Pearlman J. concluded that A.B.’s consent, although not in writing, specifically contemplated K.L.W.’s reproductive use of his stored sperm after his death, and that was sufficient to satisfy the fundamental objective of the AHRA that the donor’s consent must be both free and informed:

[133]      One of the guiding principles of the AHRA is the promotion and application of free and informed consent as a fundamental condition for the use of human reproductive technologies. Another guiding principle, set out in s. 2(b), is that the benefits of the technology for individuals, families and society can be most effectively secured by appropriate measures for the protection and promotion of human health, safety and dignity. Here, [A.B.] and the petitioner sought to use the technology in order to have a child of their own. They took appropriate steps to ensure that the [content redacted] would not be passed to any child they conceived through in-vitro fertilization.  They consulted with medical specialists about the safe use of the technology.

[134]     To deny the petitioner the use of the Reproductive Material intended by [A.B.] would be both unfair and an affront to her dignity.

Accordingly, Pearlman J. ordered the release of the Reproductive Material to K.L.W. to enable her use of that material for the purpose of creating an embryo.

Take home point on genetic material rights BC

Having a family is one of the most fundamental human desires, but many people face the challenges of infertility. Developments in assisted reproductive technology have required a re-examination of the genetic material rights BC. In particular contexts, courts have held that human sperm or ovums stored for reproductive purposes are property. In all cases, the determination of the nature and scope of property rights that a person can have in genetic material will depend on the specific facts and applicable legislation.

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