By Monique Shebbeare

Many couples assume that if they have stored sperm, ova (eggs) or embryos at a fertility clinic, if one of them died, the other could automatically use those to conceive a child. Is that true?

No – Canada’s Assisted Human Reproduction Act, and the Assisted Human Reproduction (Section 8 Consent) Regulations have very specific requirements for written consents around the use of stored sperm, eggs (I’ll also use ‘gametes’ to refer to sperm and eggs) and embryos. Under the rules, to use gametes to create an embryo, the donor (the person whose body the sperm or eggs came from) must have signed a written document during their life to show that they were informed in writing that their gametes would be used in accordance with their consent for a specific purpose and providing consent to the specific purpose – in this case, use after the donor’s death by the person who was at the time of death the donor’s spouse or common-law partner (other possible purposes are the donor’s own reproductive use, the reproductive use of a third party, improving assisted reproduction procedures and providing instruction in assisted reproduction procedures).

Similar written consent requirements exist for embryos. If embryos had already been created before the person’s death, and if the embryos were created for the couple’s use (regardless of the source of the gametes to create the embryo), the couple must both have consented in writing to them being used by the couple for their own reproductive purposes.

Written consents could be in the form of clinic consent forms, separate consent forms, or in the Will of the person who died (preferably, it would be in both a consent form as well as the Will). The key is that it must be in writing and it must be a consent about the specific use.

WHAT IF THERE IS NO WRITTEN CONSENT?

The British Columbia Supreme Court in K.L.W. v. Genesis Fertility Centre, 2016 BCSC 1621, recently allowed the widow of her spouse who died to use his sperm after his death, even though there was no written consent and no Will. The widow had to make an application to court, and the facts of her case were particularly compelling.

In this case, the spouse who died had severe medical conditions with many significant challenges over a period of years. The couple wanted to have children together, but his health issues were an ongoing barrier. However, they were able to take the step of having his sperm extracted and stored with a fertility clinic. They hoped to use it together, and they agreed verbally that if he died she could have his child. They talked about their plans to have a family, and his intention for the widow to be able to use his sperm if he died, with many health care professionals including a physician, nurse and their social worker, as well as their family. However, nothing was ever put in writing. No consent about use of the sperm was signed. Very sadly, he died before they could have their family together. He never made a Will and he died intestate (without a Will).

Because they had no children, under the intestacy rules (the rules if a person dies without a Will), his entire estate would pass to his widow. However, because of the federal law’s very specific requirements for written consent, the clinic could not allow the widow to use his sperm. The only possible way around this, for both the widow and the clinic, would be a court order allowing her to use the sperm.

In the end, the court declared that the stored sperm was the sole property of the widow, and allowed the widow to use the sperm to create embryos for her own reproductive use (and no other purpose). In coming to this conclusion, the court made these important points:

• Sperm as property – In the context this case, the sperm was property. The spouse who died had rights of use and ownership sufficient to make it property. The court looked at caselaw from BC in other contexts and from other jurisdictions that found sperm to be property in certain contexts (this is not absolute). One important factor in this case was that everyone involved – the spouse who died, his widow, and the clinic – all treated the sperm as property. It came from the spouse’s body, was extracted to preserve it for future use by the spouse and his widow, and only he could authorize its use.
• Estate law – The sperm passed to the widow as sole beneficiary of the deceased spouse’s estate. A person’s estate includes all their property, and the sperm was the personal property of the deceased spouse. No one other than the widow claimed any right to the sperm. The deceased spouse intended his widow to be able to use the sperm for her own reproductive use after his death, and the widow had been paying the storage fees.
• Form of consent and the purpose of the law – In this case, the court could order release of the sperm to the widow notwithstanding the lack of written consent. The court looked beyond the very specific provisions of the Assisted Human Reproduction Act about consent to the law’s underlying purpose of protecting people’s right to free and informed consent about the use of their own genetic material, and preventing the commercial trade in reproduction; the law aims to prevent people’s genetic material from being used against their will or for commercial purposes. In this case, the widow’s purpose was completely in line with the purpose of the act. The law also promotes the ability of people to use reproductive technology to conceive a child.
• The spouse who died was never informed of the requirement for written consent, so he never had the opportunity to provide written consent. It was clear on all the evidence that the deceased spouse fully understood that his sperm would be used to create an embryo following his death for his widow to conceive a child. In this case, denying the widow the right to use the sperm to conceive a child would be unfair and an affront to her dignity, as well as completely contrary to the deceased spouse’s intention. Interpreting the law in a purposive way, the deceased’s spouse’s verbal consent was sufficient to satisfy the fundamental objective of ensuring free and informed consent.

WHAT ABOUT EXTRACTING SPERM AFTER DEATH?

For gametes to be extracted from a person’s body after their death, the person must have signed a written document during their life consenting to removal of gametes after their death to be used in accordance with their consent for a specific purpose.

WHAT YOU SHOULD DO IF YOU HAVE STORED GAMETES or EMBRYOS AT A CLINIC?

• Check the consent(s) you signed with your fertility clinic. Do they clearly and explicitly say that you can use your spouse’s gametes or the embryos created with them if one of you died? Do they cover all of your intentions (for example, can the surviving spouse donate on to another person or couple; what would you want to happen to the sperm, eggs or embryos if you both died )?
• If not, ask a fertility lawyer to draft a specific consent form about use of your stored gametes if you died or became mentally incapable.
• Make sure that any donor agreement or other assisted reproduction contract you have signed has a clause that you can use your spouse’s gametes or the embryos created with them if one of you died. If you are making a Cohabitation or Marriage Agreement, include the clause there too.
• Either way, make or update your Wills to make your intentions crystal clear that you can use your spouse’s gametes or the embryos created with them if one of you died. Bringing a court application is an expensive, time consuming and uncertain process, and is the last thing you want your spouse to experience when they are already grieving the loss of the life partner with whom they hoped to raise a family.