The case of an Assisted Human Reproduction from a Deceased Donor
The B.C. Supreme Court in L.T. v. The Estate of D.T. 2019 BCSC 2130 ruled against a widow who wanted to use the sperm of her recently deceased husband to have a second child. The husband died suddenly in 2018 without a will or any written plan to store his reproductive material. A day after his death, the wife inquired with a fertility centre about retrieving her husband’s sperm and was told the retrieval needed to occur within 36 hours of his death. The wife commenced an urgent court application and the judge authorized the removal of the deceased husband’s sperm but ordered it be stored at the fertility centre until a full hearing could take place.
At the hearing, the wife argued that the husband had provided implied consent because he had expressed his wishes to expand his family during his lifetime but the judge dismissed the wife’s petition citing the federal Assisted Human Reproduction Act which prohibits the removal of human reproductive material from a deceased donor for the purposes of creating an embryo without their prior written consent. He did allow the husband’s sperm to continue to be stored for 30 days pending an appeal by the wife. The court of appeal judge in L.T. v. D.T. Estate 2020 BCCA 328 maintained that “implied, hypothetical, imputed, or substituted consent are simply not consent” and upheld the decision.
This case shows us that if spouses are considering starting a family or storing reproductive material for future use, it is important and necessary to have a comprehensive written plan to that effect to accompany any other estate planning documents.
Deborah A. Todd