An interesting headline recently made its way through international news channels: Ellidy Pullin, wife of Olympian snowboarder Alex “Chumpy” Pullin, welcomed their first child… 15 months after his tragic death. Using sperm retrieved from the pro snowboarded dad immediately after his passing, Ellidy was able to conceive their child via IVF and carry it to term.

The intentional application of advanced medical technologies to achieve conception, pregnancy and childbirth in a situation where one or both parents are declared dead[1] is a modern phenomenon known as posthumous reproduction. While Ellidy faced a number of legal and psychological hurdles, she was ultimately permitted, in her home state of Queensland, to retrieve her late husband’s reproductive materials to create the embryo which would become their child.

As medical technology advances, this begs the question: What is Canada’s stance on posthumous reproduction?

In Canada, posthumous reproduction for the purpose of creating an embryo is heavily regulated by federal law and is only permitted in explicit circumstances.

According to section 8(2) of the Assisted Human Reproduction Act[2] (the “Act”), the removal of human reproductive material (sperm or egg) from a donor’s body after the donor’s death for the purpose of creating an embryo is prohibited unless the donor of the material has given written consent to its removal for that purpose prior to their death.

What constitutes appropriate written consent is governed Part 2 of the Assisted Human Reproduction (Section 8 Consent) Regulations[3] (the “Regulations”) created under the Act. According to the Regulations, inter alia, consent from the deceased donor has to be provided in a document signed by the donor stating that, before the consenting to the removal, the donor was informed in writing of several items, including what purposes the materials will be retrieved for and how the donor can withdraw their consent in writing.[4]

Another important caveat is that only the donor’s spouse or common-law partner[5] at the time of the donor’s death is allowed to make use of the retrieved reproductive materials.[6]

As posthumous reproduction is still a relatively new procedure, there is very little caselaw which interprets its statutory requirements. Most recently in 2020, in the case of LT v DT Estate,[7] the BC Court of Appeal confirmed that consent needed to be obtained in writing prior to the donor’s death and could not be inferred from a donor’s prior statements. For more information on the case of LT v DT Estate, please click here to read a more extensive commentary provided by Daniel Paperny, partner at WEL Partners.

The legislation presents an interesting conundrum. While it contemplates situations where the death of one or both partners is anticipated, it seems to provide no wiggle room in the event that death or incapacity of one or both partners is sudden, leaving unexpected widows and widowers such as Ellidy Pullin without the same luck in Canada. It remains to be seen how the law will develop as we move into a new era of reproductive technology, and how these changes may affect estate planning in the future.

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[1] Yael Hashiloni-Dolev & Silke Schicktanz, “A cross-cultural analysis of posthumous reproduction: The significance of the gender and margins-of-life perspectives” (2017), 4 Reprod Biomed Online, at 21-32. Online here: https://doi.org/10.1016/j.rbms.2017.03.003

[2] SC 2004, c.2

[3] SOR/2007-137

[4] See sections 6 to 9 of the Regulations.

[5] In the Regulations, a common-law partner is an individual who has cohabited with the donor in a conjugal relationship for a period of at least 1 year. This is different from the definition of common-law spouse captured under Part III of the Ontario Family Law Act which requires at least 3 years for a common-law relationship to be found.

[6] Section 7(a)(i) of the Regulations.

[7] 2020 BCCA 328.