The Importance Of Written Consent: Posthumous Use Of Human Reproductive Material In LT v DT Estate, 2020 BCCA 328 – Litigation, Mediation &…

03 December 2020

Clark Wilson LLP

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The BC Court of Appeal has confirmed that the removal and use ofhuman reproductive materials (sperm, ova, and embryos) both duringone's life, and after one's death, requires prior andinformed written consent.

The recent decision ofL.T. v D.T. Estate, 2020BCCA 328 [L.T. v D.T.] isone of the few cases in Canada that deals directly with theuse of reproductive material under theAssisted HumanReproduction Act, S.C. 2004, c.2[AHRA]and its Regulations.L.T. v D.T.arosefrom the tragic circumstances surrounding the sudden and unexpecteddeath of Mr. T., who left behind his wife, Ms. T., and their youngchild. Mr. and Ms. T had planned to have more childrentogether, but, like most other couples, they had not turned theirminds to the potential posthumous use of their reproductivematerial should one of them die. After her husband'ssudden death, Ms. T sought an order that Mr. T's reproductivematerial be removed from his body, so that their child would have abiological sibling. Following an after-hours application inextremely time-restricted circumstances (the sperm would have beenrendered unusable approximately 36 hours after death), an order wasgranted for the posthumous retrieval and storage of Mr. T'sreproductive material at a fertility clinic, pending a fullhearing.

At the Supreme Court hearing, Ms. T's application wasdismissed on the basis that Mr. T had not provided prior writtenconsent to the extraction or use of his sperm.

On appeal, the main issue involved the proper statutoryinterpretation of section 8(2) of the AHRA, which provides:

(2) No person shall remove humanreproductive material from a donor's body after thedonor's death for the purpose of creating an embryo unlessthe donor of the material has given written consent, in accordancewith the regulations, to its removal for that purpose.

In interpreting this provision in its ordinary meaning andcontext, with the objectives of AHRA and intention of Parliament inmind, Harris, J.A. held that the prohibition in s. 8(2) of AHRA andss. 6-8 in its accompanying Regulation are clear and unequivocal;they reflect Parliament's choice to emphasize AHRA'sfocus on the principle of free and informed consent as afundamental condition of the use of human reproductive material andtechnologies. The Court of Appeal emphasized the intention ofParliament to preserve the individual's right to autonomy andcontrol over his or her own body. The requirement of priorinformed written consent to the use or removal of one'sreproductive material has now been interpreted as absolute.

Despite commenting that the posthumous removal of Mr. T'ssperm was contrary to the prohibition in s. 8(2) of AHRA (andtherefore against the law), the Court of Appeal noted that theinterim order for removal of Mr. T's sperm was clearly theright thing to do. I strongly agree. These wereextremely difficult circumstances that called for the high level ofjudicial foresight given. In my view, this foresight wasechoed in the Supreme Court hearing by allowing for an extendedappeal period, and subsequently in the Court of Appeal, which againleft the door ajar for an appeal to the Supreme Court ofCanada. I, for one, will be eagerly watching to see if afurther appeal will be made and whether an exception can be carvedfrom the rigid requirements of AHRA.

The important takeaway from the case is thestrict andunforgiving written consent requirements for the use of humanreproductive material. This is particularly vital for thosewho seek reproductive technology in order to conceive achild. If you have sperm, ova, or embryos stored at afertility clinic, you must ensure you have considered how and whenthat material may be used, both during your life or after yourdeath, and that the properly worded consent forms are signed.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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The Importance Of Written Consent: Posthumous Use Of Human Reproductive Material In LT v DT Estate, 2020 BCCA 328 - Litigation, Mediation &...

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