Can human reproductive material removed from a deceased donor who had not given prior written consent to its removal or use be used to create embryos to allow his partner to have a child fathered by him? The definitive answer is no, per the BC Court of Appeal in L.T. v. D.T. Estate, 2020 BCCA 328. Canadian law clearly and unequivocally prohibits the removal or use of genetic material unless the donor gave prior, informed, written consent to its removal and use for that purpose in accordance with formal consent requirements.
Ms. T and Mr. T were married for three years before Mr. T died suddenly and unexpectedly. He died intestate (i.e., without a Will). Not long before his death, Mr. and Ms. T had a child. Both wanted more children, wanted to have siblings for their child, and took great joy in being parents. They planned to have more children together, but neither considered what would happen if one or other of them died. They did not turn their minds to the possible posthumous use of genetic material.
When Mr. T died, Ms. T brought an urgent after‑hours application seeking orders that the human reproductive material of Mr. T be removed from his body and stored at an IVF clinic to be used to create embryo(s). Recognizing that it was a last-minute urgent application and that a denial would be terminal, the judge made an order permitting the removal of Mr. T’s reproductive material pending a final determination of whether that material could be removed and used. It was accepted by the court that Mr. T would have consented to the posthumous use of his reproductive material if he had considered the issue. However, Mr. T had not consented to its posthumous removal or use in fact or, most importantly, in accordance with the plain statutory language of the Assisted Human Reproduction Act, S.C. 2004, c. 2 [“AHRA”] and its regulations, the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007‑137.
In the circumstances that confronted the judge, making an interim order to permit the removal of Mr. T’s reproductive material pending a determination of whether that material could be removed and used was clearly the right thing to do. What it permitted, however, was the removal of Mr. T’s reproductive material contrary to the prohibition in the AHRA and its regulations. In that sense, it permitted the commission of a criminal offence. This was not a case in which there was doubt about whether Mr. T had provided consent; it was accepted from the beginning that Mr. T had not consented to the posthumous removal of his reproductive material.
Ms. T. contended that the statute could be interpreted so that failure to comply with those requirements was not fatal to the right to remove and use the genetic material. Her contention was definitively rejected by the BC Court of Appeal. The law prohibits removal of reproductive material to create an embryo unless the donor (here Mr. T) has given written consent for that use in accordance with the regulations (which he had not). The section does not admit of any exceptions. The Court of Appeal explicitly stated that the interim order ought not to have been pronounced, making it unnecessary to make a similar order in future cases.
Section 8(2) of the AHRA prohibits posthumous removal of reproductive material without consent:
(2) No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.
The regulations to the AHRA state that before a person posthumously removes human reproductive material from a donor’s body for the purpose of creating an embryo the person shall have a document signed by the donor stating that, before the donor had consented in writing to such removal, the donor was informed (in writing) of four matters; namely that:
(a) his or her material would be removed posthumously in accordance with his or her consent to create an embryo for the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common law spouse and/or for research or instructional purposes;
(b) any withdrawal of consent would have to be in writing;
(c) any withdrawal of consent would only be effective if the person who intends to remove the material is notified in writing of the withdrawal before removal; and that
(d) his or her removed material cannot be used for (a) unless the person who intends to use the material has the donor’s written consent under Part 1 respecting the use of the material.
The effect of the AHRA and its regulations read together is unequivocal and clear. No other forms of “consent” can have any application in rendering the posthumous removal of reproductive material lawful. Implied, hypothetical, imputed, or substituted consent are simply not consent for the purpose of avoiding the prohibition. The law does 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 have not been met. The Court of Appeal explicitly overruled portions of a previous BC decision which contemplated the possible use of reproductive material where the statutory consent conditions had not been complied with (see here for our BC litigation team’s summary of K.L.W. v. Genesis Fertility Clinic, 2016 BCSC 1621).
The only circumstances in which it is lawful to posthumously remove and use reproductive material from a donor is if the donor provided consent in compliance with the federal law: namely, prior informed written consent to its removal and use for that purpose.
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