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Dead man’s sperm off limits: court

Spouse wanted siblings for first child after husband’s death

B.C.'s Court of Appeal has ruled against a widow seeking to have a child using sperm from her dead husband's body.

Not long before his death, a couple referred to by the court as Mr. and Ms. T had a child, the unanimous ruling of three BC Court of Appeal judges said. They had been in a long-term relationship and married for three years before his death.

Mr. T died  October 2, 2018. Ms. T contacted a fertility centre the next day about retrieving Mr. T’s sperm for future reproductive use. She was told such a retrieval should occur within 36 hours of death and needed a court order.

So, on October 3, 2018, an urgent after-hours application was brought before BC Supreme Court Justice David Masuhara seeking orders to remove and store Mr. T’s reproductive material.

Masuhara authorized the removal by a qualified physician and ordered it be stored at the identified fertility centre. He further stipulated it could not be released, distributed or used until further order of the court.

However, Mr. T had not given his consent for post-mortem removal of his sperm prior to his death.

However, people close to Mr. T testified he wished to have more children, that his child have siblings.

The federal Assisted Human Reproduction Act and regulations prohibit the removal of human reproductive material from a donor without the donor’s prior, informed, written consent.

So, Masuhara ruled in December 2019, “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.”

He ordered the sperm destroyed but stayed the order for an appeal.

However, on November 24, appeal court Justice David Harris said, “I would dismiss the appeal. I do so with regret, aware of the painful and tragic circumstances confronting Ms. T’s family.”

Harris said the legislation “is a clear and unequivocal prohibition on removal of reproductive material to create an embryo unless the donor (here Mr. T) has given written consent for that use in accordance with the regulations (which he had not).”
Further Harris said, “I cannot agree that the prohibition is only intended to apply in the case of a foreseeable death and not an unanticipated one where a couple are planning to have children together. To read the statute in that way would be to amend it by judicial decree. We have no right to do so.”

Harris also dismissed the suggestion that Masuhara’s interim order permitting the removal of Mr. T’s reproductive material has created property that she was entitled to possess. 

“Her potential claim to have such a right would have been lost without the order,” Harris said.

However, Harris stayed his order for 60 days to permit the possibility if an appeal to the Supreme Court of Canada.


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