Dispute over dead husband’s sperm shows need to plan ahead as reproductive technology advances – Financial Post

The widow appealed to the Court of Appeal for B.C., which reached the same result and dismissed the appeal. In a decision released on Nov. 24, Justice David Harris, writing for the court, begins his analysis by acknowledging he is bound by the legislation and that the case before the court is one of statutory interpretation. He goes on to note that the relevant provision of the AHRA is a clear and unequivocal prohibition on removal of reproductive material to create an embryo unless the donor has given written consent for that use in accordance with the regulations.

Continuing in his analysis, Justice Harris notes the relevant section does not admit of any exceptions.

It applies to all persons, the judge continues. It does not carve out an exception for spouses or commonlaw partners. It does not provide any exception to the requirement of prior written consent. It does not deal with a situation in which a donors death is anticipated differently from one in which it is unexpected. There is no provision in the section for the court to order otherwise or to relieve from the prohibition. And, there is no indication of any criteria a court might consider to avoid the universal and uniform application of the prohibition.

Underscoring the emotions in the case and the impact the decision will have on the widow, her child and other members of the family, Justice Harris dismissed the appeal with regret, aware of the painful and tragic circumstances confronting (the widows) family.

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Dispute over dead husband's sperm shows need to plan ahead as reproductive technology advances - Financial Post

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