Canada: No Life After Death: Woman Loses Battle to Use Deceased Husband’s Sperm

A man and a woman were excited to become parents, and expressed their joy to their friends and families, exclaiming that they cannot wait until they give their daughter a sibling or two. Sadly, the man died unexpectedly. The next day, the new widow contacted a fertility clinic to inquire into retrieving her husband’s sperm for future reproductive use and was told that a retrieval of this kind should occur within 36 hours of death and that a court order was required. The court authorized the retrieval, but said that nothing else could occur until further order of the court. After a hearing, the court ruled that the widow could not use her deceased husband’s reproductive material because he did not give his consent before his death.

The man died without a will and also without any other type of planning documents. Section 8(2) of the Assisted Human Reproduction Act (AHRA) provides: 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 widow argued that the court should adopt a broader definition of “consent” based on common law principles. The court rejected that argument, though, where there is clear and unequivocal legislative language before it. The Regulations within the AHRA required the consent to be informed, such that the donor knew that (a) their reproductive material would be posthumously removed and (b) that their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner.

See Malkit Atwal, Canada: No Life After Death: Woman Loses Battle to Use Deceased Husband’s Sperm, Mondaq, December 17, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.