In a November 2020 decision, the British Columbia Court of Appeal upheld a lower court’s dismissal of a surviving widow’s (“Ms. T’s”) application to extract and use the reproductive material of her deceased husband (“Mr. T” or the “Deceased”) to create embryos fathered by the Deceased posthumously. The impeding factor in this unfortunate case was the fact that Mr. T had not provided his informed written consent to such use prior to his death, as required by governing legislation.
Specifically, the federally enshrined legislation – the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “AHRA”) and its accompanying regulation, the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007137 (the “Regulation”) – expressly prohibits the removal of human reproductive material posthumously from a donor without the donor’s prior, informed, written consent.
The Court ruled that Ms. T was prohibited from using Mr. T’s reproductive material after his death. Despite the fact that she was the primary beneficiary of Mr. T’s estate, the BCCA concluded that the reproductive material could not be extracted or used by Ms. T, because Mr. T had no given his informed, written consent to such use prior to his death.
The LT v DT Estate case provides an important takeaway for will-makers who might wish to allow their surviving spouse to use their reproductive material after they die: these wishes, and informed consent to such use, must be expressed by the testator in writing before they die in accordance with governing legislation, otherwise such use may be prohibited.
Ms. T and Mr. T had been in a long-term relationship and were married for three years prior to Mr. T’s death. Shortly before the Deceased’s passing, the couple had a child together. Ms. T and Mr. T had both, in the past, expressed their intentions to have more children and both wanted a larger family and had discussed their desire for their existing child to have sibling(s) in the future.
Tragically, Mr. T died suddenly, intestate (without a will), survived by Ms. T and their infant child.
Following Mr. T’s death, Ms. T brought an urgent application seeking orders that: Mr. T’s reproductive material be removed from his body; stored at an IVF clinic of Ms. T’s choosing; and permitted to be used by Ms. T in the future to create embryos.
Unfortunately, like with most young couples, Mr. T and Ms. T never discussed what would happen if one of them were to die suddenly, and specifically did not discuss their wishes or consent surrounding the posthumous use of their reproductive material.
Section 8(2) of the federally enshrined AHRA provides that posthumous use of a donor’s reproductive material is only permitted with prior informed written consent. The relevant provision reads as follows:
Posthumous use 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 [R]egulations, to its removal for that purpose. [emphasis added]
The accompanying Regulation goes on to state:
Consent Given Under Subsection 8(2) of the Act
7 Before a person removes human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, the person shall have a document signed by the donor stating that, before consenting to the removal, the donor was informed in writing that
(a) the human reproductive material will be removed in accordance with the donor’s consent to create an embryo for one or more of the following purposes, namely,
(i) the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner,
(ii) improving assisted reproduction procedures, or
(iii) providing instruction in assisted reproduction procedures;
(b) if the donor wishes to withdraw their consent, the withdrawal must be in writing;
(c) the withdrawal is effective only if the person who intends to remove the human reproductive material is notified in writing of the withdrawal before the removal of the material; and
(d) human reproductive material removed from the donor cannot be used for a purpose mentioned in paragraph (a) unless the person who intends to make use of the material has the donor’s written consent under Part 1 respecting the use of the material.
8 Before a person removes human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, the person shall have the donor’s written consent respecting the removal of the material and the donor’s written consent under Part 1 respecting the use of the material.
While the lower court did grant an emergency interim order, which allowed the Deceased’s reproductive material to be removed and stored safely, pending the hearing of Ms. T’s application on its merits; ultimately, Ms. T’s application failed in light of the unequivocal wording of the AHRA and Regulation excerpted above.
The lower court judge “reluctantly, and recognizing the tragic circumstances before him” ruled that the legislation was expressly clear on this point: that prior informed written consent was necessary for a donor’s reproductive material to be used posthumously. Mr. T had not provided his informed written consent as required by the AHRA, and therefore, removal and use of Mr. T’s reproductive material in the manner sought by Ms. T was expressly prohibited at law. The application was dismissed.
Ms. T appealed.
A BC Court of Appeal tribunal unanimously upheld the lower court’s ruling and dismissed Ms. T’s appeal, while also acknowledging “the painful and tragic circumstances confronting Ms. T’s family.”
First, the Court noted its obligation to interpret the governing legislation objectively, plainly, while reading the AHRA and the Regulation together, and to give effect to the ordinary meaning of the statute where its language was clear and unambiguous. The Court declared that the intention of Parliament, and “the effect of the AHRA and the Regulation read together is unequivocal and clear,” in that together they set out specific circumstances where reproductive material can be harvested and used posthumously. Without the prior informed consent of the donor, such use is prohibited.
The Court found that Canadian Parliament’s intent in this regard (to limit use of posthumous reproductive material to instances where informed consent had been provided) was abundantly clear on the face of the legislation.
The BCCA noted that the AHRA was, effectively, advancing a key public policy consideration of protecting a prospective donor’s autonomy, privacy and personal interest, by ensuring that use of their reproductive material only be permitted with their prior informed consent.
The Court rejected Ms. T’s argument that the clause in the AHRA should only apply to foreseeable death and not to unexpected death as was the case with Mr. T. Nothing in the legislation supported that this was the government’s intention.
Further, the Court found nothing in the governing legislation or common law which would grant Ms. T property or possessive rights over Mr. T’s reproductive material, despite the fact that Ms. T (as the surviving spouse) was the primary beneficiary of Mr. T’s estate on an intestacy.
The Court concluded that the legislation created a “clear prohibition on removing Mr. T’s reproductive material unless the requirements of s. 8(2) [of the AHRA] are satisfied”, which in this case, sadly, they were not.
The BCCA dismissed Ms. T’s appeal but stayed its order for a 60-day period to allow Ms. T to consider whether to appeal the decision to the Supreme Court of Canada, during which time Mr. T’s reproductive material could be maintained.
The ruling in LT v DT Estate provides an unfortunate and tragic outcome. Despite the fact that it was Mr. and Ms. T’s mutual intention to grow their family, while Mr. T was alive, and have multiple children, effect could not be given to this intention following Mr. T’s death because he had not expressly consented to use of his reproductive material as required by the statute.
Even though Ms. T was Mr. T’s surviving spouse and, on an intestacy, the individual with the most direct claim to control over Mr. T’s estate; the Court ruled that property or possessive rights in Mr. T’s reproductive material did not transfer to Ms. T, in part by operation of the prohibitive language in the AHRA and Regulation, which required Mr. T’s informed consent in order for such material to be extracted and used.
The ruling provides an important takeaway for spouses drafting their wills, who may wish for their surviving spouse to be permitted to use their reproductive material posthumously. Such use will only be permitted if the prospective donor provides their prior informed consent, in accordance with the AHRA prior to their death.
For more reading on this subject, you can find my partners, Matthew Rendely & Kimberly Whaley’s article on posthumously conceived children in the ESTATES TRUSTS & PENSIONS JOURNAL, Volume 38 Number 4, August 2019.
 L.T. v. D.T. Estate, 2020 BCCA 328
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.