In a recent Court of Appeal decision, the court rejected a wife’s arguments that she be allowed to remove and use her husband’s reproductive material after he died unexpectedly.

Wife Goes to Court to Remove Husband’s Reproductive Material

The husband died suddenly and unexpectedly on October 2, 2018. He had been married to his wife for three years prior to his death. Not long before his death, the couple had a child.

The husband and wife had planned to have more children together. However, neither had considered what would happen if either of them died and they had not turned their minds to the possible posthumous use of their reproductive material.

Therefore, the day after the husband’s death, on October 3, 2018, the wife contacted a fertility centre about retrieving the husband’s sperm for future reproductive use and was informed that a retrieval of that kind should occur within 36 hours of death and that a court order was required.

The wife then brought an urgent after‑hours application seeking orders that:

  1. The husband’s human reproductive material be removed from his body;
  2. The human reproductive material removed from the husband be stored at an IVF clinic chosen by the wife; and
  3. The husband’s human reproductive material be used to create embryo(s) for the reproductive use by the wife, and for no other or improper purpose.

At issue was the Federal Assisted Human Reproduction Act (the “AHRA”) and its regulation, the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (the “Regulation”), which prohibit the removal of human reproductive material from a donor without the donor’s prior, informed, written consent.

The Law on Consent

Section 8 of the AHRA states:

Use of reproductive material without consent

8 (1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.

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 regulations, to its removal for that purpose.

The conditions for providing the required form of consent for the posthumous use of reproductive material are set out in ss. 6, 7 and 8 of Part 2 of the Regulation.

Lower Court Initially Grants Wife’s Request to Remove Material

In response to the urgency of the application, the lower court judge recognized that to deny the application would be terminal. As a result, he authorized the removal of the husband’s reproductive material by a qualified physician. He further ordered that the material be stored at the identified fertility centre and that such material could not be released, distributed, or used until further order of the court. His order was intended to allow the wife time to provide full submissions on the operation of the AHRA and the Regulation in a full hearing.

Lower Court Later Refuses Wife’s Request to Use Material

The subsequent hearing of the issue of whether the husband’s reproductive material could be used by the wife to create an embryo took place on October 7, 2019.

At the hearing, the judge identified the issue before him as the interpretation of the statute and its regulations. He concluded that Parliament intended to permit the posthumous use of a donor’s reproductive material only if the donor had provided consent in compliance with the Regulation: namely, prior informed written consent.

The judge rejected the wife’s arguments, which sought an interpretation of the legislation which would not preclude her use of her deceased husband’s reproductive material, concluding that there was no “legislative gap” in the scheme that applied to the facts. As a result, he found that the removal and use of the husband’s reproductive material was prohibited. The judge therefore dismissed the petition and terminated his original interim order. However, he stayed his order to permit the wife to appeal; therefore, the husband’s reproductive material remained stored at the identified fertility centre until the appeal decision.

Court of Appeal Rejects Wife’s Request

At the outset, the court recognized that the husband would have likely consented, stating:

“I think it right that we accept, for the purpose of our analysis, that [the husband] would have consented to the posthumous use of his reproductive material if he had considered the issue. [The husband] did not consent, however, to its posthumous removal or use in fact or, most importantly, in accordance with the plain statutory language of the AHRA and Regulation.”

As a result, the court agreed with the reasoning of the lower court judge on the proper interpretation of the relevant legislation and concluded:

“I would dismiss the appeal. I do so with regret, aware of the painful and tragic circumstances confronting [the wife]’s family. Given the circumstances, I would stay the order of this Court for 60 days to permit the parties to consider their position on an appeal to the Supreme Court of Canada.”

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