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Tuesday March 31, 2020

Another Look: Widow Denied Late Husband’s Sperm

Authored by: Terrance G. Sheppard, QC Posted in: Family Law

In this case, a wife and husband had been in a long-term relationship and had been married for three years until the husband died suddenly and unexpectedly. Prior to his death, the couple had recently become parents to a daughter. The husband had experienced great joy in being a father and wished to have more children and for his daughter to have siblings.

When the husband died unexpectedly, the wife made an urgent after-hours application to the judge for permission to have her husband’s sperm removed, stored in an in vitro fertility clinic, and used to create embryos for her reproductive use. Because the husband’s sperm had to be removed and stored within 36 hours after his death to prevent the complete loss of his sperm, the judge ordered the sperm to be removed and stored. However, the judge said the question as to whether the wife was allowed to use the sperm for her reproductive use was a question that would be decided later by the court.

To answer that question, the court later interpreted the law under the Assisted Human Reproductive Act. The court said a married spouse or common-law partner could use the reproductive material of their deceased spouse or partner (or “donor”) only if certain requirements were met. Specifically, prior to the donor’s death:

  1. The donor must have signed a document stating that the donor was informed in writing that (a) the donor’s reproductive material would be posthumously removed (i.e., removed after the donor’s death), and (b) the purpose for that material was the posthumous reproductive use of the donor’s spouse or common-law partner; and
  1. The donor must have consented in writing to what the donor was informed about under requirement (1).

The court said these requirements were clear under the Assisted Human Reproductive Act. In this case, the court said the husband had not provided his informed consent in writing (or even verbally). Moreover, because the requirement for written and informed consent was clear under the law, this meant the court was not allowed to infer the husband’s consent from his intentions before he had died. However, even if the court was allowed, the evidence showed the husband wished to have more children before his death, but it did not show that he wished to continue having children after his death through his wife’s reproductive use of his sperm.

The court declined the wife’s request for the court to use its parens patriae power, which is a power that allows a court to make decisions in the best interests of affected persons. The court declined because this power had never been used by another court before to make a decision that was in the best interests of a deceased person.

Finally, the court decided the wife did not have a property interest in her husband’s sperm. This was because the court’s temporary order that authorized the removal and storage of the husband’s sperm could not in itself generate a property interest for the wife. The husband’s sperm was strictly being held under the court’s supervision.

In concluding its decision, the court emphasized principles that underly the Assisted Human Reproductive Act. One principle included promoting free and informed consent that must be applied as a fundamental condition to the use of human reproductive technologies. Another principle was that consent underpins the fundamental importance that Canadian society ascribes to human autonomy.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues in Fertility Law. If you are seeking legal advice, please call (902) 469-9500 to schedule your free 30-minute consultation with Terrance G. Sheppard.

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