Wife Loses Latest Bid to Preserve and Use Deceased Husband’s Sperm
In a heart-wrenchingly difficult case from the B.C. Court of Appeal, the key issue was whether the sperm of a recently-deceased husband could be removed from his body posthumously, and used by his wife to create embryos, even though the husband had not given his prior written consent while alive.
The couple had been in a long-term relationship, and had recently had a child together. They had been planning to add to the family to give their child a sibling. But with the husband’s unexpected death, the wife now wanted to use his sperm to create embryos through assistive reproductive technology, and give birth to children for whom the husband would be the biological father.
The court introduced the narrative of the wife’s agonizing journey through the court system with this words:
This is a very sad story. The parties were happily married at the time of the husband’s sudden and unexpected death, and everyone agreed that the parties wanted to have more children and at least one sibling for their first child.
The antagonist in the story? The [federal] Assisted Human Reproduction Act … and its regulations … which prohibit the removal of human reproductive material from a donor without the donor’s prior, informed, written consent.
The court continued:
As is probably true for 99.5 percent of the Canadian population, neither the husband nor the wife considered what would happen if one of them died. They did not turn their minds to the possible posthumous use of their respective reproductive materials. However, for the purpose of their analysis, the Court of Appeal accepted that the husband would have consented to the posthumous use of his reproductive material had he considered it. But he did not actually consent in accordance with the plain statutory language of the AHRA and Regulation. And that was a big, big problem.
Immediately after her husband died, the wife brought an urgent after-hours application to the court, to allow her to remove his sperm and having it stored an IVF clinic. She also wanted a clear court order allowing her to create embryos for reproductive use. Recognizing the timeliness of the urgent request, a lower court judge granted her request temporarily, pending a further court order. Given the importance of the outcome to general public policy around the use of human reproductive matter, the matter then attracted the input of various federal and provincial government Ministries, who were allowed to make submissions at a later full hearing.
At that next stage before a second lower court judge, the wife unfortunately did not succeed in getting the order she wanted. The wording of the legislation was clear: The husband’s reproductive material could only be used if had given prior informed written consent. There was no ambiguity in the language, no “loopholes”, and no exception to be resorted to. As the Appeal Court related back the chronology: “Very reluctantly, and recognizing the terribly tragic circumstances, [the lower court judge] dismissed the Application and terminated his interim order [preserving the sperm]. However, he stayed his own Order to permit the wife to appeal.”
Not surprisingly, the wife appealed further; unfortunately, the Appeal Court was likewise unable to rule in her favour. That Court noted that the legislative scheme was validly-enacted by Parliament, and reflected a clear policy-based choice that favoured individual autonomy and control over one’s body – even in the fact of the moral and ethical dilemmas raised by new reproductive technologies. The legislation was clearly-worded and unequivocal, and was subject to straightforward, well-established rules governing statutory interpretation. For the wife to be entitled to use his sperm for reproductive purposes, the husband would have had to give prior written consent before his death – which he sadly did not do.
Regrettably, the wife’s appeal was dismissed, but the Appeal Court did stay its order to give her 60 days within which to consider launching an appeal to the Supreme Court of Canada. At least at the time of writing, it appears that the wife did not avail herself of that option.
For the full text of the decision, see:
L.T. v. D.T. Estate, 2020 BCCA 328