The use of genetic material for the purposes of conception is now an issue which is being litigated in Canada.
For various reasons a man or a woman may decide to have their eggs or sperm frozen for use at a later date. A woman may choose to do this if she is reaching an age where the quality of her eggs will deteriorate but she may not yet be ready to have children. A man may have his sperm frozen if he is about to receive treatment for cancer.
There is authority stating that sperm and eggs are considered to be property and that they can be disposed of by the owner in a contract or a will.
The Assisted Human Reproduction Act states that written consent of a deceased is required in order to use the genetic material but the case of K.L.W. v. Genesis Fertility Centre 2016 BCSC 1621 states that consent can be implied from conduct.
If you have frozen your sperm or your eggs it is important to include a clear disposition of this property in your will.
If you are the executor of an estate and the deceased has frozen eggs or sperm it is important for you to “take control” of this material. If the will does not specifically address the issue it’s important that you attempt to determine the deceased’s intention regarding the disposition of the genetic material.
Deborah A. Todd