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Tuesday December 17, 2019

Widow Denied Late Husband’s Sperm

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

Last week, a widow from British Columbia was denied access to her late husband’s sperm.

The couple recently had their first child and were planning to have more when her husband died unexpectedly in October 2018 without a will. Hours after her husband’s death, the B.C. woman made a plea to the court to preserve her husband’s sperm in hopes of having more children.

The order was granted pending the outcome of a full hearing.

However, following the full hearing, B.C. Supreme Court Justice David Masuhara dismissed the petition as the husband did not give written consent.

The judge ruled that the law is clear.

Specifically, the Assisted Human Reproduction Act says: “no person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent.”1

There was no written consent here.

The judge also rejected the idea that her late husband’s sperm was the widow’s property. Although other cases have found reproductive material to be property, this case was different.

For example, in another British Columbia case, the reproductive material had already been extracted by the donor prior to his death and was stored in facility specifically for the later reproductive use of his spouse.2

The judge ruled that this was not the case here.

In this case, the only reason the husband’s sperm was removed was because of the 2018 court order pending the outcome of a full hearing, which was not enough to give a property interest.3

Justice Masuhara noted: “Under present legislative circumstances, our policy makers require an individual to formalize their informed consent in writing if she or he wishes to permit the posthumous removal of their reproductive material.  Regrettably, that is not the case here.”4

The decision was given December 9, 2019 and Justice Masuhara put a 30-day hold on the order to destroy the sperm to give the widow a chance to appeal.

Spouses can proactively protect themselves and their future families through proper estate planning and legal agreements. A well-drafted estate plan or legal agreement can result in significant cost savings down the line and offer a sense of security for spouses.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of family planning. If you are seeking legal advice, please call 902-469-9500 to schedule your free 30-minute consultation with a member of our Family Law team.

1 Assisted Human Reproduction Act, SC 2004, c 2, s 8(2).

2 L.T. v D.T. Estate (Re), 2019 BCSC 2130 at para 55 referring to K.L.W. v Genesis Fertility Centre, 2016 BCSC 1621.

3 Ibid.

4 L.T. v D.T. Estate (Re), 2019 BCSC 2130 at para 61.

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